Petition for Writ of Certiorari — William M. Turner, Petitioner v. Middle Rio Grande Conservancy District, et al.

App. 1

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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WILLIAM M. TURNER,

Plaintiff-Appellant,

No. 17-2105

(D.C. No. 1:15-CVMIDDLE RIO GRANDE CON00339 RB-SCY)

SERVANCY DISTRICT; SUBHAS

(D. N.M.)

SHAH, Former Executive Director

of the Middle Rio Grande Conservancy District (MRGCD) and

former Chief Engineer and former

Chairman of the New Mexico

Board of Licensure for Professional Engineers and Professional

Land Surveyors; DENNIS DOMRZALSKI, Former MRGCD Public

Information Officer; JOHN DOES,

Members or Former Members of

the New Mexico Board of Licensure for Professional Engineers

and land Surveyors; EDUARD

YTUARTE, Former Executive

Director, New Mexico Board of

Licensure for Professional Engineers and Land Surveyors; JOHN

T. ROMERO, Former Chair of the

Engineering Committee, New

Mexico Board of Licensure for

Professional Engineers and Land

Surveyors; JOHN DOES OF KOB

v.

App. 2

CHANNEL 4 NEWS OF ALBUQUERQUE; KOB-TV; MARY

SMITH, New Mexico Assistant

Attorney General,

Defendants-Appellees

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ORDER AND JUDGMENT*

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(Filed Dec. 12, 2018)

Before LUCERO, HOLMES, and EID, Circuit

Judges.

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Plaintiff-appellant Dr. William Turner sued various municipal and state officials and others for allegedly violating his constitutional rights in connection

with proceedings against him for practicing engineering without a license. The district court dismissed

Turner’s suit as untimely under New Mexico’s statute

of limitations. We affirm.

I.

The Middle Rio Grande Conservancy District

(“MRGCD” or the “District”) is a municipal corporation

* This order and judgment is not binding precedent, except

under the doctrines of law of the case, res judicata, and collateral

estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

App. 3

that manages water in the Albuquerque Basin. Turner,

a hydrogeologist, was elected to a four-year term on the

MRGCD Board of Directors (“MRGCD Board”). App. at

14.1 During a public meeting of the MRGCD Board in

February 2006, Turner gave a presentation accusing

certain board members of official malfeasance. Id. at

19. In particular, Turner alleged that the former Executive Director of the MRGCD Board, Subhas Shah,2

had authorized the deposit of rock rubble in ditch roads

within the MRGCD. Id. Turner drew from mathematical formulas to argue that fortifying ditch roads with

rock rubble impeded water flow and could lead to flooding in ditch levees. App. at 321. Turner’s presentation

allegedly made clear that he was not an engineer and

recommended that the Board consult a licensed engineer before taking corrective measures. Id.

In April 2007, the District’s public information officer, Dennis Domrzalski, filed a complaint against

Turner with the Board of Licensure for Professional

Engineers (“BOL”). Id. at 20. Shah allegedly dictated

the complaint and ordered Domrzalski to file it. Id. The

complaint alleged that Turner had practiced engineering without a license during his presentation to the

MRGCD Board. Id. at 20, 322. On February 26, 2010,

the BOL concluded that Turner had practiced

1

Turner’s two-volume, consecutively paginated Appendix is

cited as “App.” followed by the page number.

2

The district court’s Memorandum and Opinion and the

MRGCD’s brief spell Subhas Shah’s name as we have here. That

appears to be the correct spelling notwithstanding a variant

spelling on the district court’s caption.

App. 4

engineering without a license, id. at 21, 322, imposed

a civil penalty, and directed Turner to pay the costs of

the BOL administrative hearing, id. at 322. See N.M.

Stat. Ann. §§ 61-23-2 & 3. Turner appealed the BOL

decision to the Second Judicial District Court of New

Mexico. Id. At Turner’s request, the court stayed enforcement of the BOL decision during the appeal.

Determining that the BOL decision was not supported by substantial evidence, the court reversed. Id.

at 323. The court further ruled that the Board’s application of the licensure statute violated Turner’s First

Amendment right to share his concerns about an engineering issue at a public meeting. Id. The New Mexico

Attorney General’s office appealed and, in April 2013,

the New Mexico Court of Appeals affirmed. See N.M.

Bd. of Licensure for Prof ’l Eng’rs & Prof ’l Surveyors v.

Turner, 303 P.3d 875, 883 (N.M. Ct. App. 2013).

On April 23, 2015, over five years after the BOL

decision, Turner filed this suit under 42 U.S.C. § 1983

and § 1985 in the United States District Court for the

District of New Mexico. App. at 302. His complaint alleged that the District, Shah, Domrzalski, and unnamed District employees (collectively, “MRGCD

Defendants”) violated, among other things, his constitutional right to free speech.3 See id. at 22. The

3

The amended complaint also named as defendants former

BOL executive director Eduard Ytuarte, former BOL chair of the

engineering committee John Romero, and New Mexico Assistant

Attorney General Mary Smith (collectively, “State Defendants”).

In three orders, the district court ruled that Turner’s suit against

the State Defendants was untimely. The court also held that

App. 5

MRGCD Defendants moved to dismiss. Id. at 298. The

district court granted the motion. The court ruled, in

relevant part, that Turner’s claims under § 1983 and

§ 1985 accrued when the BOL decision issued on February 26, 2010, and thus were time barred by New

Mexico’s three-year statute of limitations.4 Id. at 302–

03.

Turner contends that the statute of limitations did

not start until appellate review of the BOL decision

was completed in 2013, making this federal civil rights

suit timely. Reviewing the district court’s contrary determination de novo, see Leathers v. Leathers, 856 F.3d

729, 757 (10th Cir. 2017), we affirm.

Ytuarte and Romero were protected by judicial immunity, and

that Smith was protected by prosecutorial immunity. See Turner

v. Middle Rio Grande Conservancy Dist., No. 1:15-CV-00339

RB/SCY, 2017 WL 4542877, at *3 (D. N.M. Feb. 10, 2017)

(Ytuarte); Turner v. Middle Rio Grande Conservancy Dist., No.

1:15-CV-00339 RB/SCY, 2017 WL 4534836, *3 (D. N.M. Feb. 7,

2017) (Romero); Turner v. Middle Rio Grande Conservancy Dist.,

No. 1:15-CV-00339 RB/SCY, 2017 WL 4271310, *4–5 (D. N.M.

Jan. 30, 2017) (Smith). Turner does not challenge the district

court’s rulings that the State Defendants are immune from his

suit. Turner also sued a television news station and unknown individuals associated with the station, but those defendants were

dismissed with prejudice by stipulation in May 2016 and were not

involved in the case after that. Order, Turner v. Middle Rio

Grande Conservancy Dist., No. 1:15-CV-00339 RB/SCY (May 18,

2016).

4

Because we conclude that Turner’s claims are barred by the

governing statute of limitations, we do not address the district

court’s additional rulings that Turner failed to state a claim

against MRGCD under § 1983 or a claim against any of the three

MRGCD Defendants under § 1985(3).

App. 6

II.

States and municipalities have a “strong interest

in timely notice of alleged misconduct by their agents.”

See Wallace v. Kato, 549 U.S. 384, 397 (2007). The

length of the statute of limitations for § 1983 and

§ 1985 claims is drawn from the forum state’s limitations period for personal injury torts. See Robinson v.

Maruffi, 895 F.2d 649, 653–54 (10th Cir. 1990). The

parties agree that New Mexico’s three-year limitations

period governs this case. N.M. Stat. Ann. § 37-1-8.

Though state law prescribes the length of time

within which Turner must bring his claim, federal

common law determines when the “claim accrues and

the limitations period starts to run.” See Mondragón v.

Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008). A

plaintiff ’s claim has “accrued” when it is complete—

that is, “when the plaintiff can file suit and obtain relief ” in court. Wallace, 549 U.S. at 388 (internal quotations omitted). The district court determined that

Turner’s § 1983 and § 1985 claims accrued on February 26, 2010, the date that the BOL concluded that

Turner had practiced engineering without a license.

App. at 303. Using this accrual date, the court concluded that Turner’s claims expired on February 26,

2013, more than two years before he filed the present

suit on April 23, 2015.

Turner argues that his claim did not accrue, and

the limitations clock did not begin to run, until the

New Mexico Court of Appeals affirmed the lower

court’s reversal of the BOL decision in April 2013,

App. 7

making the present suit timely. Turner’s primary support for his position is Heck v. Humphrey, 512 U.S. 477

(1994). We conclude that Heck is inapposite and reject

Turner’s other arguments for reversal.5

A.

Turner contends that Heck v. Humphrey “demonstrates” that New Mexico’s “statute of limitations was

tolled” until appellate review of the BOL decision

ended. Aplt. Br. at 13 (capitalization omitted). Heck,

however, does not toll a limitations period; rather, it

bars imprisoned plaintiffs from filing § 1983 suits

where the civil rights claim would necessarily imply

that the plaintiff ’s conviction or sentence is invalid.

Heck, 512 U.S. at 481–82. Such claims must instead be

presented through a habeas corpus petition. Heck is

therefore inapposite to the case at hand, which involves civil fines and not detention.

Heck v. Humphrey arises from the “potential overlap” between § 1983 and the federal habeas corpus

5

Count Six of Turner’s amended complaint alleges a “malicious prosecution” claim. Ordinarily, a malicious prosecution

claim “accrues, at the earliest, when favorable termination occurs,” see Mondragón, 519 F.3d at 1083, which here would have

been after the BOL decision. But “[u]nlike a malicious prosecution

claim . . . a First Amendment retaliatory-prosecution claim does

not require a favorable termination of the underlying action.” See

Mata v. Anderson, 635 F.3d 1250, 1252–53 (10th Cir. 2011). At

oral argument, Turner’s counsel confirmed that his malicious

prosecution claim was predicated solely on a First Amendment

violation. Oral Arg. at 3:35–3:58. Therefore, the malicious prosecution claim also accrued on the date of the BOL decision.

App. 8

statute. Id. at 481. The case concerned whether a state

prisoner alleging that he had been unconstitutionally

tried and convicted could seek monetary damages under § 1983. Id. The Court held that a damages award

under § 1983 was not an available remedy when “a

judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.” Id. at

487. Such § 1983 suits are not cognizable until the

plaintiff proves that the underlying conviction or sentence has been cleared away. Id. at 486–87. Otherwise,

§ 1983 would become a vehicle to upset state criminal

judgments and bypass Congress’s requirement that

habeas petitioners exhaust adequate state remedies

before seeking the writ in federal court. See id. at 480–

82.

Heck bars § 1983 suits only when the plaintiff is in

custody and the civil rights claim calls into question

the fact or duration of the plaintiff ’s confinement. Heck

does not toll the statute of limitations for § 1983

claims, as Turner suggests. Rather, Heck says that

there is no § 1983 action “at all” for claims implying

the invalidity of confinement until the plaintiff is no

longer in custody. Id. at 483. Because the focus is

whether the plaintiff is in custody, Heck also bars

§ 1983 suits where the plaintiff is subject to a civil detention. See Cohen v. Clemens, 321 F. App’x 739, 742

(10th Cir. 2009) (unpublished) (concluding that Heck

precludes an alien detainee from challenging his detention through a Bivens suit for damages against immigration officials).

App. 9

The Heck bar does not apply to plaintiffs like

Turner who are not subject to physical confinement

and thus are outside the “potential overlap” between

§ 1983 and habeas corpus. Turner was not criminally

convicted or subject to a civil detention. The BOL fined

Turner for practicing engineering without a license.

See N.M. Stat. Ann. § 61-23-2. Turner never paid the

fine and administrative hearing costs because he obtained a stay of enforcement of the BOL’s order while

his state-court appeal was pending. See App. at 281. To

be sure, had Turner not obtained a stay and then failed

pay the civil penalties, he may have faced misdemeanor charges. See N.M. Stat. Ann. § 61-23-27.11(C).

But the attenuated risk of criminal charges is insufficient to call Heck into play. The Wallace court rejected

the theory that an “anticipated future conviction” deferred the accrual date for a § 1983 claim. Wallace, 549

U.S. at 393. We conclude that Heck is inapposite.

B.

Turner offers three other reasons why his claims

did not accrue until April 2013. None has merit.

First, he argues that state appellate review of the

BOL decision was a “continuing wrong” that deferred

the accrual date. Aplt. Br. at 20. “[W]here a tort involves a continuing or repeated injury, the cause of action accrues at, and limitations begin to run from, the

date of the last injury.” See Tiberi v. Cigna Corp., 89

F.3d 1423, 1430 (10th Cir. 1996). The limitations period

runs when “the wrong is over and done with.” Id. Even

App. 10

assuming that the continuing wrong doctrine applies

to § 1983 suits, that doctrine is inapplicable here because the alleged violation of Turner’s free speech

rights was “over and done with” once the BOL issued

its decision in 2010. The subsequent stay of enforcement and appellate review of the BOL decision is not

a continuing violation of Turner’s constitutional rights.

See Mata v. Anderson, 635 F.3d 1250, 1253 (10th Cir.

2011) (explaining that the accrual date is deferred “by

continual unlawful acts, not by continual ill effects

from the original violation” (internal quotation marks

omitted)).

Second, Turner asserts that his suit is timely because, had the present suit been filed before the New

Mexico appeals court completed its review of the BOL

decision, Turner’s federal claims could have been dismissed under Younger abstention. See Aplt. Br. at 17;

see also Younger v. Harris, 401 U.S. 37 (1971). That argument is ill-founded. Abstention is “an extraordinary

and narrow exception,” Allegheny Cty. v. Frank

Mashuda Co., 360 U.S. 185, 188 (1959), to a district

court’s “virtually unflagging obligation” to decide cases

properly within its jurisdiction, see Colo. River Water

Conservation Dist. v. United States, 424 U.S. 800, 817

(1976). And in the rare case where “abstention may be

an appropriate response to the parallel state-court proceedings,” Heck, 512 U.S. at 487 n.8, the district court

is not empowered to suspend the state-prescribed limitations period; the district court can instead “stay the

civil action until the criminal case or the likelihood of

a criminal case is ended.” Wallace, 549 U.S. at 394

App. 11

(noting that state law, not federal common law, generally sets “tolling rules”).

That is why the Wallace Court rejected “the

far-reaching proposition that equitable tolling is appropriate to avoid the risk of concurrent litigation.” Id.

at 396. Abstention principles, then, do not permit

§ 1983 plaintiffs to bring (otherwise stale) claims in

federal court. Indeed, suspending state limitations periods under Younger would transform abstention from

a federal-state comity doctrine into something that encroaches on the “strong interest [of states] in timely

notice of alleged misconduct by their agents.” Wallace,

549 U.S. at 397.

Turner’s third argument draws upon New Mexico

statutory law. He contends that his suit is timely because “[w]hen the commencement of any action shall

be stayed or prevented by injunction order or other

lawful proceeding, the time such injunction order or

proceeding shall continue in force shall not be counted

in computing the period of limitation.” N.M. Stat. Ann.

§ 37-1-12. Turner contends that § 37-1-12 stopped the

clock on the statute of limitations during appellate review of the BOL decision.

The problem for Turner, as the district court noted,

is that § 37-1-12 “refers only to injunctions or other orders that preclude ‘the commencement’ of an action.”

App. at 315 (quoting Butler v. Deutsche Morgan Grenfell, Inc., 140 P.3d 532, 537 (N.M. Ct. App. 2006)). No

injunction or order prevented Turner from bringing his

federal claims in a separate lawsuit in federal court

App. 12

within three years following the BOL decision. Section

37-1-12, therefore, did not toll the limitations period.

III.

In sum, we conclude that New Mexico’s three-year

statute of limitations on Turner’s § 1983 and § 1985

claims began to run when the BOL issued its decision.

Since Turner did not file this suit until five years after

that date, his suit is untimely. The judgment is affirmed.

Entered for the Court

Allison H. Eid

Circuit Judge

App. 13

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

DR. WILLIAM M. TURNER,

Plaintiff,

v.

No. 1:15-cv-00339 RB/SCY

MIDDLE RIO GRANDE CONSERVANCY

DISTRICT; SUBASH SHAH, Former Executive

Director of the Middle Rio Grande Conservancy

District (MRGCD) and former Chief Engineer

and former Chairman of the New Mexico

Board of Licensure for Professional Engineers

and Professional Land Surveyors; DENNIS

DOMRZALSKI, Former MRGCD Public

Information Officer; JOHN DOES, Members

or Former Members of the MRGCD; MARY

SMITH, New Mexico Assistant Attorney

General; JOHN DOES, Members or Former

Members of the New Mexico Board of

Licensure for Professional Engineers and

Land Surveyors; EDUARD YTUARTE, Former

Executive Director, New Mexico Board of

Licensure for Professional Engineers and Land

Surveyors; JOHN T. ROMERO, Former Chair

of the Engineering Committee, New Mexico

Board of Licensure for Professional Engineers

and Land Surveyors; and JOHN DOES, of KOB

Channel 4 News of Albuquerque; and KOB-TV,

Defendants.

App. 14

FINAL ORDER

(Filed Feb. 24, 2017)

THE COURT, having issued a Memorandum

Opinion and Order on February 24, 2017, enters this

Final Order in compliance with Rule 58 of the Federal

Rules of Civil Procedure. Judgment is entered in favor

of Defendants and against Plaintiff and this matter is

dismissed with prejudice.

IT IS SO ORDERED.

/s/ Robert Brack

ROBERT C. BRACK

UNITED STATES

DISTRICT JUDGE

App. 15

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

DR. WILLIAM M. TURNER,

Plaintiff,

v.

No. 1:15-cv-00339 RB/SCY

MIDDLE RIO GRANDE CONSERVANCY

DISTRICT; SUBASH SHAH, Former Executive

Director of the Middle Rio Grande Conservancy

District (MRGCD) and former Chief Engineer

and former Chairman of the New Mexico

Board of Licensure for Professional Engineers

and Professional Land Surveyors; DENNIS

DOMRZALSKI, Former MRGCD Public

Information Officer; JOHN DOES, Members

or Former Members of the MRGCD; MARY

SMITH, New Mexico Assistant Attorney

General; JOHN DOES, Members or Former

Members of the New Mexico Board of

Licensure for Professional Engineers and

Land Surveyors; EDUARD YTUARTE, Former

Executive Director, New Mexico Board of

Licensure for Professional Engineers and Land

Surveyors; JOHN T. ROMERO, Former Chair

of the Engineering Committee, New Mexico

Board of Licensure for Professional Engineers

and Land Surveyors; and JOHN DOES, of KOB

Channel 4 News of Albuquerque; and KOB-TV,

Defendants.

App. 16

MEMORANDUM OPINION AND ORDER

(Filed Feb. 24, 2017)

THIS MATTER comes before the Court upon Defendants Middle Rio Grande Conservancy District,

Subhas Shah, and Dennis Domrzalski’s (“MRGCD Defendants”) Motion to Dismiss. (Doc. 70.) Jurisdiction

arises under 28 U.S.C. §§ 1331 and 1367. Having considered the submissions of counsel and relevant law,

the Court will GRANT this motion.

I.

Background

On April 23, 2015 Plaintiff filed suit in this Court

against the Middle Rio Grande Conservancy District

(“MRGCD”), MRGCD employees, and members of the

Board of Licensure for Professional Engineers and Professional Land Surveyors (“BOL”). (Doc. 1.) In his First

Amended Verified Complaint to Recover Damages Due

to Deprivations of Civil Rights/Violations of the United

States and New Mexico Constitutions, Civil Conspiracy, and for Common Law Torts (“Amended Complaint”), Plaintiff alleges the following facts. (Doc. 3.)

Plaintiff is “an internationally recognized hydrogeologist with more than 40 years of national and international consulting experience in hydrology, geology, and related fields.” (Id.) In June 2005, Plaintiff was

elected to a four-year term on the Board of Directors of

the MRGCD. (Id.) During his campaign and throughout his term on the MRGCD Board of Directors, Plaintiff sought to expose and correct multiple acts of

malfeasance perpetrated by Defendant Shah, Former

App. 17

Executive Director of the MRGCD, and Defendant

Domrzalski, Former Public Information Officer of

the MRGCD. (Id.) On February 27, 2006, Plaintiff

delivered a presentation to the MRGCD in which he

asserted that it was inappropriate to utilize “unengineered rip-rap” to reinforce ditch roads within the

MRGCD. (Id.)

On April 24, 2007, Defendant Domrzalski filed a

complaint with the BOL that accused Plaintiff of practicing engineering without a license. (Doc. 3.) Defendant Shah was the executive director of the MRGCD, as

well as the Former Chief Engineer and Chairman of

the BOL. (Id.) Defendant Shah dictated the complaint

to Defendant Domrzalski. (Id.) Defendants Shah and

Domrzalski knew that Plaintiff was immune from the

complaint because he was a board member of the

MRGCD and they filed the complaint with the intent

to harass Plaintiff and oust him from the MRGCD

Board. (Id.) Defendant Shah pressured Defendant Eduard Ytuarte, Former Executive Director of the BOL,

to hold an administrative hearing to cast negative publicity on Plaintiff before the MRGCD Board elections.

(Id.)

On February 26, 2010, the BOL issued a decision

concluding that Plaintiff had practiced engineering

without a license in connection with his presentation

concerning the un-engineered rip-rap. See N.M. Bd. of

Licensure for Prof ’l Eng’s & Prof ’l Surveyors v. Turner,

303 P.3d 875, 878 (N.M. Ct. App. 2013). At the time the

BOL issued its decision, Defendant Romero was Chair

of the Engineering Committee of the BOL. (Doc. 3.)

App. 18

Defendant Romero drafted the decision in consultation

with Defendant Ytuarte. (Id.)

Plaintiff appealed the BOL decision to the Second

Judicial District Court of the State of New Mexico.

(Doc. 3.) On September 29, 2011, the Second Judicial

District Court found that Plaintiff had not engaged in

the practice of engineering without a license and that

the BOL’s decision violated Plaintiff ’s First Amendment rights to free speech. (Id.) The New Mexico Attorney General’s Office, through Defendant Smith,

appealed the decision to the New Mexico Court of Appeals. (Id.) On April 24, 2013, the New Mexico Court of

Appeals upheld the District Court’s decision that the

BOL’s decision violated Plaintiff ’s First Amendment

rights to free speech. (Id.)

In Counts I, II, III, IV, V, and VI of the Amended

Complaint, Plaintiff alleges a violation of his right to

procedural due process, a violation of his rights under

the First Amendment, a violation of his rights to equal

protection and to be free from discrimination, conspiracy to violate his constitutional rights, civil conspiracy,

malicious prosecution/abuse of process, defamation,

and slander against the MRGCD Defendants. (Id.)

These claims are based on the factual allegations that

the MRGCD Defendants filed the BOL complaint,

acted in concert and influenced the BOL to issue a notice of violation, demanded that Plaintiff agree to a settlement, solicited the Attorney General to pursue the

administrative BOL hearing and appeal the district

court’s decision, and made defamatory statements

about Plaintiff. (Id.)

App. 19

The MRGCD Defendants have moved to dismiss

on the grounds that the claims against them are

barred by the statute of limitations and the New Mexico Tort Claims Act, and for failure to state a claim.

(Doc. 76.) In his response brief, Plaintiff contends that

the claims are valid and not barred by the statute of

limitations. (Doc. 88.) Plaintiff concedes that the tort

claims against the MRGCD Defendants in their official

capacities are barred by the statute of limitations of

the New Mexico Tort Claims Act, he does not have a

viable conspiracy claim under 42 U.S.C. §1985(1) or a

malicious prosecution claim under the Fourth Amendment, and he does not allege a state tort claim for malicious abuse of process claim. (Id.)

II.

Legal Standard

In order to withstand a motion to dismiss, the complaint “must contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its

face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)).

“The court’s function on a Rule 12(b)(6) motion is not

to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiffs’

amended complaint alone is legally sufficient to state

a claim for which relief may be granted.” Brokers’

Choice of Am., Inc. v. NBC Universal, 757 F.3d 1125,

1135–36 (10th Cir. 2014); Peterson v. Grisham, 594 F.3d

723, 727 (10th Cir. 2010). The plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the

App. 20

misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 570). The plaintiff must nudge

his “claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. When deciding a motion

to dismiss under Rule 12(b)(6), the Court assumes that

all of the plaintiff ’s well-pleaded factual allegations

are true and views them in the light most favorable to

the plaintiff. Iqbal, 556 U.S. at 679; Schwartz v. Booker,

702 F.3d 573, 579 (10th Cir. 2012).

III. Discussion

A. Statute of Limitations

The MRGCD Defendants assert that Plaintiff ’s

claims under 42 U.S.C. §§ 1983 and 1985 are barred by

the statute of limitations. The statute of limitations for

claims brought under Sections 1983 and 1985 is governed by the personal injury statute of limitations for

the state in which the federal district court sits.

Mondragon v. Thompson, 519 F.3d 1078, 1082 (10th

Cir. 2008); Graham v. Taylor, 640 F. App’x 766, 769

(10th Cir. 2016). In New Mexico, the statute of limitations period for personal injury actions is three years.

N.M. Stat. Ann. § 37-1-8. Plaintiff concedes that the

three-year statute of limitations applies to his civil

rights claims.

The issue in this case is when Plaintiff ’s claims

accrued. While state law provides the statute of limitations period, federal law determines the date on which

the claim accrues and the statute begins to run.

Mondragon, 519 F.3d at 1078 (citing Wallace v. Kato,

App. 21

549 U.S. 384, 387 (2007)); Graham, 640 F. App’x at 769.

State law also determines any tolling of the limitations

period, although federal law may allow for additional

tolling in rare circumstances. Mondragon, 519 F.3d at

1078 (citation omitted).

Defendants argue that Plaintiff ’s civil rights

claims accrued no later than February 26, 2010, when

the BOL issued its decision. Plaintiff filed this action

more than five years later on April 23, 2015, making

the claim time-barred. Plaintiff responds that his

claims accrued on April 24, 2013, when the New Mexico Court of Appeals issued its decision, or the statute

of limitations was tolled until that date. Plaintiff relies

on Heck v. Humphrey, 512 U.S. 477 (1994) for the notion that the statute of limitations was tolled while the

appeal was pending.

Under federal law, § 1983 claims generally rely on

the common law tort principle that the claim accrues

when the plaintiff “has a complete and present cause

of action, that is, when the plaintiff can file suit and

obtain relief.” Wallace, 549 U.S. at 388 (quoting Bay

Area Laundry & Dry Cleaning Pension Tr. Fund v. Febar Corp. of Cal., 522 U.S. 192, 201 (1997)) (internal

citations omitted). “A civil rights action accrues when

the plaintiff knows or has reason to know of the injury

which is the basis of the action.” Price v. Philpot, 420

F.3d 1158, 1162 (10th Cir. 2005). It is not necessary

that the plaintiff know of all the evidence that he ultimately relies on for the statute of limitations to accrue.

Id. Additionally, Heck applies only to claims that would

imply the invalidity of a criminal conviction or

App. 22

sentence. See Beck v. City of Muskogee Police Dep’t, 195

F.3d 553, 557 (10th Cir. 1999). As Plaintiff was not

criminally convicted or sentenced, Heck is inapplicable.

The BOL issued its decision on February 26, 2010.

Plaintiff had reason to know of his alleged injury no

later than that date. However, Plaintiff did not file this

lawsuit until April 23, 2015, which was more than

three years after the claims accrued. Accordingly,

Plaintiff ’s civil rights claims under 42 U.S.C. §§ 1983

and 1985 are barred by the statute of limitations.

B. New Mexico Tort Claims Act (NMTCA)

Defendants assert that Plaintiff ’s state tort claims

are barred by the NMTCA. Plaintiff concedes that the

tort claims against MRGCD defendants in their “official capacities” are barred by the NMTCA’s two-year

statute of limitations. However, this is a distinction

without a difference. The NMTCA is the “exclusive

remedy against a governmental entity or public employee for any tort for which immunity has been

waived under the Tort Claims Act and no other claim,

civil action or proceeding for damages, by reason of the

same occurrence, may be brought against a governmental entity or against the public employee or his estate whose act or omission gave rise to the suit or

claim.” N.M. Stat. Ann. § 41-4-17(A). A public employee

of New Mexico may not be sued unless the plaintiff ’s

cause of action fits within one of the exceptions granted

to governmental entities and public employees in the

App. 23

NMTCA. See Begay v. State, 723 P.2d 252, 255 (N.M.

Ct. App. 1985), rev’d on other grounds by Smialek v. Begay, 721 P.2d 1306 (N.M. 1986). The NMTCA provides

a waiver of sovereign immunity only for claims in specified categories. Plaintiff concedes that his claims

against the MRGCD Defendants do not fit within any

of these categories.

Additionally, the NMTCA provides that “[a]ctions

against a governmental entity or a public employee for

torts shall be forever barred, unless such action is commenced within two years after the date of occurrence

resulting in loss, injury or death.” N.M. Stat. Ann. § 414-15. The last action of the BOL that could potentially

support Plaintiff ’s tort claims against the MRGCD Defendants occurred on February 26, 2010. Plaintiff filed

this action on April 23, 2015, which was more than two

years after the date of occurrence. Accordingly, Plaintiff ’s tort claims against the MRGCD Defendants are

barred by the two-year statute of limitations in the

NMTCA.

C. Failure to state a Section 1983 claim

against Defendant MRGCD

Defendant MRGCD asserts that Plaintiff has

failed to allege facts that would support a claim

against it. In response, Plaintiff asserts that the claims

against Defendant MRGCD are based on the alleged

actions of Defendant Shah as a “decision maker.” (Doc.

88.)

App. 24

It bears underscoring that there is no respondeat

superior liability under Section 1983. Schneider v. City

of Grand Junction Police Dep’t, 717 F.3d 760, 767 (10th

Cir. 2013). A local government body may be held liable

“only for its own unconstitutional or illegal policies and

not for the tortious acts of its employees.” Barney v.

Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998). To establish a claim under Section 1983 against a local government body for the acts of employees, a plaintiff

must prove: (1) that an employee committed a constitutional violation, and (2) that a policy or custom of the

government body directly caused the injury alleged.

City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989);

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978);

Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir.

1993). The Amended Complaint fails to identify a policy or custom on the part of Defendant MRGCD that

led to any injury. Accordingly, Plaintiff has failed to

state a Section 1983 claim against Defendant MRGCD.

D. 42 U.S.C. Section 1985(3) Conspiracy

Defendants contend that Plaintiff has failed to

state a claim under 42 U.S.C. § 1985(3). A claim arises

under this section of the statute where two or more

persons conspire for the purpose of depriving, either

directly or indirectly, any person or class of persons of

the equal protection of the laws, or of equal privileges

and immunities under the laws. See 42 U.S.C.

§ 1985(3); Jones v. Norton, 809 F.3d 564, 576 (10th Cir.

2015) (holding that a plaintiff must allege a conspiracy

App. 25

based on discriminatory animus in order to assert a

plausible claim under Section 1985(3)).

While § 1985(3) does not create any substantive

rights, it provides a remedy when individuals conspire

to deprive a member of a protected class of equal protection of the laws or equal privileges and immunities

under the laws. See Gallegos v. City & Cnty. of Denver,

984 F.2d 358, 362 (10th Cir. 1993) (citing Dixon v. City

of Lawton, 898 F.2d 1443, 1448 (10th Cir. 1990)). “The

essential elements of a § 1985(3) claim are: (1) a conspiracy; (2) to deprive plaintiff of equal protection or

equal privileges and immunities; (3) an act in furtherance of the conspiracy; and (4) an injury or deprivation

resulting therefrom.” Tilton v. Richardson, 6 F.3d 683,

686 (10th Cir. 1993).

Notably, the plaintiff must demonstrate that

“some racial, or perhaps otherwise class-based, invidiously discriminatory animus [lay] behind the conspirators’ action.” Bray v. Alexandria Women’s Health

Clinic, 506 U.S. 263, 267–68 (1993) (quoting Griffin v.

Breckenridge, 403 U.S. 88, 102 (1971)). As the Supreme

Court has stated, the “invidiously discriminatory animus” element requires “that the defendant have taken

his action ‘at least in part “because of,” not merely

“in spite of,” its adverse effects upon an identifiable

group.’ ” Id. at 275–76 (quoting Personnel Adm’r of

Mass. v. Feeney, 442 U.S. 256, 279 (1979)).

Moreover, to support a conspiracy claim, a plaintiff

must show a meeting of the minds or agreement

among the defendants and a concerted action. See

App. 26

Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 533

(10th Cir. 1998) (discussing § 1983 conspiracy claim).

In this case, Plaintiff alleges that Defendants conspired against him based on that fact that his wife and

sons are Jewish and Plaintiff is affiliated with the Jewish community. (Doc. 88.) Plaintiff has failed to provide

any factual details of the alleged conspiracy or to allege

a discriminatory animus behind any of the MRGCD

Defendants’ actions grounded in Plaintiff ’s race, sex,

religion, or national origin. For these reasons, Plaintiff

has failed to state a claim under 42 U.S.C. § 1985(3).

IV. Conclusion

Plaintiff ’s claims against the MRGCD Defendants

are barred by the statute of limitations and the New

Mexico Tort Claims Act. Additionally, Plaintiff has

failed to state a claim against Defendant MRGCD and

failed to state a claim or under 42 U.S.C. § 1985(3).

THEREFORE,

IT IS ORDERED that the MRGCD Defendants’

Motion to Dismiss (Doc. 70) is GRANTED.

/s/ Robert Brack

ROBERT C. BRACK

UNITED STATES

DISTRICT JUDGE

App. 27

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

DR. WILLIAM M. TURNER,

Plaintiff,

v.

No. 1:15-cv-00339 RB/SCY

MIDDLE RIO GRANDE CONSERVANCY

DISTRICT; SUBASH SHAH, Former Executive

Director of the Middle Rio Grande Conservancy

District (MRGCD) and former Chief Engineer

and former Chairman of the New Mexico

Board of Licensure for Professional Engineers

and Professional Land Surveyors; DENNIS

DOMRZALSKI, Former MRGCD Public

Information Officer; JOHN DOES, Members

or Former Members of the MRGCD; MARY

SMITH, New Mexico Assistant Attorney

General; JOHN DOES, Members or Former

Members of the New Mexico Board of

Licensure for Professional Engineers and

Land Surveyors; EDUARD YTUARTE, Former

Executive Director, New Mexico Board of

Licensure for Professional Engineers and Land

Surveyors; JOHN T. ROMERO, Former Chair

of the Engineering Committee, New Mexico

Board of Licensure for Professional Engineers

and Land Surveyors; and JOHN DOES, of KOB

Channel 4 News of Albuquerque; and KOB-TV,

Defendants.

App. 28

MEMORANDUM OPINION AND ORDER

(Filed Feb. 10, 2017)

THIS MATTER comes before the Court upon Defendant Eduard Ytuarte’s Motion for Judgment on the

Pleadings. (Doc. 78.) Jurisdiction arises under 28

U.S.C. §§ 1331 and 1367. Having considered the submissions of counsel and relevant law, the Court will

GRANT this motion.

I.

Background

On April 23, 2015 Plaintiff filed suit in this Court

against the Middle Rio Grande Conservancy District

(“MRGCD”), MRGCD employees, and members of the

Board of Licensure for Professional Engineers and Professional Land Surveyors (“BOL”), including Defendant Ytuarte. (Doc. 1.) In his First Amended Verified

Complaint to Recover Damages Due to Deprivations of

Civil Rights/Violations of the United States and New

Mexico Constitutions, Civil Conspiracy, and for Common Law Torts (“Amended Complaint”), Plaintiff alleges the following facts. (Doc. 3.)

Plaintiff is “an internationally recognized hydrogeologist with more than 40 years of national and international consulting experience in hydrology, geology, and related fields.” (Id.) In June 2005, Plaintiff

was elected to a four-year term on the Board of Directors of the MRGCD. (Id.) During his campaign and

throughout his term on the MRGCD Board of Directors, Plaintiff sought to expose and correct multiple

acts of malfeasance perpetrated by Defendant Shah,

App. 29

Executive Director of the MRGCD, and Defendant

Domrzalski, Public Information Officer of the MRGCD.

(Id.) On February 27, 2006, Plaintiff delivered a

presentation to the MRGCD in which he asserted that

it was inappropriate to utilize “un-engineered rip-rap”

to reinforce ditch banks within the MRGCD. (Id.)

On April 24, 2007, Defendant Dennis Domrzalski,

Former MRGCD Public Information Officer, filed a

complaint with the BOL accusing Plaintiff of practicing engineering without a license. (Doc. 3.) Defendant

Shah was the Executive Director of the MRGCD, as

well as the Chairman of the BOL. (Id.) Defendant Shah

dictated the complaint to Defendant Domrzalski. (Id.)

Defendants Shah and Domrzalski knew that Plaintiff

was immune from the complaint because he was a

board member of the MRGCD and they filed the complaint with the intent to harass Plaintiff and oust him

from the MRGCD Board. (Id.) Defendant Shah pressured Defendant Eduard Ytuarte, Former Executive

Director of the BOL, to hold an administrative hearing

to cast negative publicity on Plaintiff before the

MRGCD Board elections. (Id.)

On February 26, 2010, the BOL issued a decision

concluding that Plaintiff had practiced engineering

without a license in connection with his presentation

concerning the un-engineered rip-rap. See NM Bd. of

Licensure for Prof ’l Eng’g & Prof ’l Surveyors v. Turner,

303 P.3d 875, 878 (N.M. Ct. App. 2013). At the time the

BOL issued its decision, Defendant Ytuarte was the

Executive Director of the BOL and Defendant Romero

was Chair of the Engineering Committee of the BOL.

App. 30

(Doc. 3.) Defendant Romero drafted the decision in consultation with Defendant Ytuarte. (Id.)

Plaintiff appealed the BOL decision to the Second

Judicial District Court of the State of New Mexico. (Id.)

On September 29, 2011, the Second Judicial District

Court found that Plaintiff had not engaged in the practice of engineering without a license and that the

BOL’s decision violated Plaintiff ’s First Amendment

rights to free speech. (Id.) The New Mexico Attorney

General’s Office, through Defendant Smith, appealed

the decision to the New Mexico Court of Appeals. (Id.)

On April 24, 2013, the New Mexico Court of Appeals

upheld the District Court’s decision that the BOL’s decision violated Plaintiff ’s First Amendment rights to

free speech. (Id.)

In Counts I, IV, V, and VI of the Amended Complaint, Plaintiff alleges violation of procedural due

process, conspiracy to violate Plaintiff ’s constitutional

rights, civil conspiracy, and malicious prosecution/

abuse of process against Defendant Ytuarte. (Doc. 3.)

These claims are based on the factual allegations that

Defendant Ytuarte was the Executive Director of the

BOL when the decision was issued, Defendant Ytuarte

issued a notice of violation to Plaintiff, and the decision

was reached during meetings without a formal hearing. (Id.)

Defendant Ytuarte moves for judgment on the

pleadings on the grounds that the claims against him

are barred by the statute of limitations, judicial immunity, qualified immunity, and the New Mexico Tort

App. 31

Claims Act. (Doc. 78.) In his response brief, Plaintiff

contends that the New Mexico Tort Claims Act is inapplicable, the claims are not barred by the statute of

limitations, and Defendant Ytuarte is not entitled to

judicial immunity or qualified immunity. (Doc. 91.)

II.

Legal Standard

When analyzing a motion for judgment on the

pleadings pursuant to Fed. R. Civ. P. 12(c), the Court

applies the same standard applicable to a motion to

dismiss pursuant to Fed. R. Civ. P. 12(b)(6). In order to

withstand a motion for judgment on the pleadings or a

motion to dismiss, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’ ” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atlantic v.

Twombly, 550 U.S. 544, 570 (2007)). The plaintiff must

nudge his “claims across the line from conceivable to

plausible.” Twombly, 550 U.S. at 570. The plaintiff

must plead “factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 570). The Court accepts

as true all of the factual allegations in the complaint

and construes those facts in the light most favorable to

the plaintiff. See Anderson v. Merrill Lynch Pierce Fenner & Smith, Inc., 521 F.3d 1278, 1284 (10th Cir. 2008).

App. 32

III. Discussion

A. Statute of Limitations

Defendant Ytuarte asserts that Plaintiff ’s civil

rights claims under 42 U.S.C. §§ 1983 and 1985 are

barred by the statute of limitations. The statute of limitations for claims brought under Sections 1983 and

1985 is governed by the personal injury statute of limitations for the state in which the federal district court

sits. Mondragon v. Thompson, 519 F.3d 1078, 1082

(10th Cir. 2008); Graham v. Taylor, 640 F. App’x 766,

769 (10th Cir. 2016). In New Mexico, the statute of limitations period for personal injury actions is three

years. N.M. Stat. Ann. § 37-1-8. Plaintiff concedes that

the three-year statute of limitations applies to his civil

rights claims.

The issue in this case is the date on which Plaintiff ’s claims accrued. While state law provides the statute of limitations period, federal law determines the

date on which the claim accrues and the statute of limitations begins to run. Mondragon, 519 F.3d at 1078

(citing Wallace v. Kato, 549 U.S. 384 (2007)); Graham,

640 F. App’x at 769. State law also determines any tolling of the limitations period, although federal law may

allow for additional tolling in rare circumstances.

Mondragon, 519 F.3d at 1078 (citation omitted).

Defendant Ytuarte argues that Plaintiff ’s civil

rights claims accrued when the BOL issued its decision

on February 26, 2010. Plaintiff filed this action more

than five years later on April 23, 2015, making them

time-barred under state law. Plaintiff responds that

App. 33

his claims accrued on April 24, 2013, when the New

Mexico Court of Appeals issued its decision. Plaintiff

relies on Heck v. Humphrey, 512 U.S. 477 (1994) for the

notion that the statute of limitations was tolled while

the appeal was pending.

Under federal law, § 1983 claims generally rely on

the common law tort principle that the claim accrues

when the plaintiff “has a complete and present cause

of action, that is, when the plaintiff can file suit and

obtain relief.” Wallace, 549 U.S. at 388 (quoting Bay

Area Laundry & Dry Cleaning Pension Tr. Fund v. Febar Corp. of Cal., 522 U.S. 192, 201 (1997)) (internal

citations omitted). “A civil rights action accrues when

the plaintiff knows or has reason to know of the injury

which is the basis of the action.” Price v. Philpot, 420

F.3d 1158, 1162 (10th Cir. 2005). It is not necessary

that the plaintiff know of all the evidence that he ultimately relies on for the statute of limitations to accrue.

Id. Additionally, Heck is not helpful to Plaintiff because

it applies only to claims that would imply the invalidity of a criminal conviction or sentence. See Beck v. City

of Muskogee Police Dep’t, 195 F.3d 553, 557 (10th Cir.

1999). As Plaintiff was not criminally convicted or sentenced, Heck is inapplicable.

The BOL issued its decision on February 26, 2010.

Plaintiff had reason to know of his alleged injury no

later than that date. However, Plaintiff did not file

this lawsuit until April 23, 2015, more than three years

after the claims accrued. Accordingly, Defendant

Ytuarte is entitled to judgment on the pleadings as to

App. 34

Plaintiff ’s civil rights claims under 42 U.S.C. §§ 1983

and 1985.

B. Judicial Immunity

Defendant Ytuarte claims entitlement to judicial

immunity. Judges acting in their judicial capacity are

absolutely immune from civil lawsuits based on their

actions, unless the judge acted clearly without any colorable claim of jurisdiction. Stump v. Sparkman, 435

U.S. 349, 356–57 (1978). Judicial immunity applies

“however erroneous the act may have been, and however injurious in its consequences it may have proved

to the plaintiff.” Cleavinger v. Saxner, 474 U.S. 193,

199–200 (1985) (quoting Bradley v. Fisher, 80 U.S. 335,

347 (1872)). “A judge is immune from liability for his

judicial acts even if his exercise of authority is flawed

by the commission of grave procedural errors.” Moss v.

Kopp, 559 F.3d 1155, 1163–64 (10th Cir. 2009) (internal

quotations marks and citations omitted). A judge lacks

immunity only when he acts in the “clear absence of all

jurisdiction,” Bradley, 80 U.S. at 351, or performs an

act that is not “judicial” in nature. Sparkman, 435 U.S.

at 360.

The Tenth Circuit has recognized that “officials

in administrative hearings can claim the absolute immunity that flows to judicial officers if they are acting

in a quasi-judicial fashion.” Guttman v. Khalsa, 446

F.3d 1027, 1033 (10th Cir. 2006) (citing Butz v. Economou, 438 U.S. 478, 514 (1978)). For an official at an

administrative hearing to enjoy absolute immunity,

App. 35

“(a) the officials’ functions must be similar to those

involved in the judicial process, (b) the officials’ actions

must be likely to result in damages lawsuits by disappointed parties, and (c) there must exist sufficient

safeguards in the regulatory framework to control unconstitutional conduct.” Id. (quoting Horwitz v. State

Bd. of Med. Examr’s, 822 F.2d 1508, 1513 (10th Cir.

1987) (internal quotation marks omitted).

Plaintiff alleges that Defendant Ytuarte was the

Executive Director of the BOL when the decision was

issued and he issued a notice of violation to Plaintiff.

Additionally, Plaintiff alleges that Defendant Ytuarte

reached the decision during BOL meetings without an

actual hearing.1 The BOL is the agency tasked with the

regulation of the licensure of engineers and surveyors

in New Mexico. See N.M. Stat. Ann. § 61-23-24. The

BOL had jurisdiction to “investigate and initiate a

hearing on a complaint against a person who does not

have a license, who is not exempt from the Engineering

and Surveying Practice Act [N.M. Stat. Ann. § 61-23-1]

and who acts in the capacity of a professional engineer

within the meaning of Engineering and Surveying

Practices Act.” N.M. Stat. Ann. § 61-23-23.1 (A). Therefore, Defendant Ytuarte acted within the jurisdiction

of the BOL when the decision and notice of violation

1

The New Mexico Court of Appeals decision states that the

BOL’s engineering committee conducted an administrative hearing on December 16, 2009 and was presented with testimony and

documentary evidence from the BOL’s prosecutor and Plaintiff.

See N.M. Bd. of Licensure for Prof ’l Eng’g and Prof ’l Surveyors v.

Turner, 303 P.3d 875, 878 (N.M. Ct. App. 2013).

App. 36

were issued. Accordingly, Defendant Ytuarte is protected by absolute judicial immunity.

C. Qualified Immunity

Defendant Ytuarte raises the defense of qualified

immunity in response to Plaintiff ’s civil rights claims

under 42 U.S.C. §§ 1983 and 1985. In order to overcome

Defendant Ytuarte’s claim of qualified immunity,

Plaintiff must show that (1) Defendant Ytuarte violated a constitutional right; and (2) that right was

“clearly established” at the time of the challenged conduct. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). The

Court may consider either part of this two-prong test

first. Id. (citing Pearson v. Callahan, 555 U.S. 223, 236

(2009)).

In determining whether Defendant Ytuarte violated Plaintiff ’s due process rights, the Court must determine: “(1) did [Plaintiff ] possess a protected interest

such that the due process protections were applicable;

and, if so, then (2) was [Plaintiff ] afforded an appropriate level of process.” Brown v. Montoya, 662 F.3d 1152,

1167 (10th Cir. 2011) (quoting Merrifield v. Bd. of Cnty.

Comm’rs, 654 F.3d 1073, 1078 (10th Cir. 2011)). “An individual has a property interest in a benefit for purposes of due process protection only if he has a

‘legitimate claim of entitlement’ to the benefit, as opposed to a mere ‘abstract need or desire’ or ‘unilateral

expectation.’ ” Teigen v. Renfrow, 511 F.3d 1072, 1078–

79 (10th Cir. 2007) (citing Bd. of Regents of State Colls.

v. Roth, 408 U.S. 564, 577 (1972)). Plaintiff has failed to

App. 37

allege sufficient facts that he had a clearly established

protected property right. Additionally, there is no

Tenth Circuit or Supreme Court case that would indicate that the process received by Plaintiff in connection

with the BOL decision or notice of violation was inadequate. Accordingly, Defendant Ytuarte is entitled to

qualified immunity as to Plaintiff ’s civil rights claims

under 42 U.S.C. §§ 1983 and 1985.

D. The New Mexico Tort Claims Act (NMTCA)

Defendant Ytuarte asserts that Plaintiff ’s tort

claims are barred by the NMTCA. The NMTCA is the

“exclusive remedy against a governmental entity or

public employee for any tort for which immunity has

been waived under the Tort Claims Act and no other

claim, civil action or proceeding for damages, by reason

of the same occurrence, may be brought against a governmental entity or against the public employee or his

estate whose act or omission gave rise to the suit or

claim.” N.M. Stat. Ann. § 41-4-17(A). A public employee

of New Mexico may not be sued unless the plaintiff ’s

cause of action fits within one of the exceptions granted

to governmental entities and public employees in the

NMTCA. See Begay v. State, 723 P.2d 252, 255 (N.M.

Ct. App. 1985), rev’d on other grounds by Smialek v. Begay, 721 P.2d 1306 (N.M. 1986).

The NMTCA provides a waiver of sovereign immunity only for claims in specified categories. Plaintiff ’s claims against Defendant Ytuarte do not fit

within any of these categories. The one waiver that

App. 38

could potentially permit a claim for malicious abuse of

process applies only to claims against law enforcement

officers. See N.M. Stat. Ann. § 41-4-12. This waiver is

inapplicable herein because Defendant Ytuarte, the

Former Executive Director of the BOL, was not a “law

enforcement officer” within the meaning of the

NMTCA.

The NMTCA defines “law enforcement officer” to

mean “a full-time salaried public employee of a governmental entity whose principal duties under law are to

hold in custody any person accused of a criminal offense, to maintain public order or to make arrests for

crimes, or members of the National Guard when called

to active duty by the governor.” N.M. Stat. Ann. § 41-412. This definition encompasses only those persons

whose principal duties include those of a direct law enforcement nature. See Anchondo v. N.M. Corr. Dep’t,

666 P.2d 1255, 1256 (N.M. 1983) (holding that the Secretary of Corrections and a state penitentiary warden

were not “law enforcement officers” within the meaning of the NMTCA).

Notably, state officials whose duties involve principally administrative, technical, or regulatory matters

are not considered law enforcement officers for the purposes of the NMTCA. See Limacher v. Spivey, 198 P.3d

370, 376 (N.M. Ct. App. 2008) (holding that an employee of the Office of the State Engineer of New Mexico was not a law enforcement officer); Dunn v.

McFeeley, 984 P.2d 760, 766 (N.M. Ct. App. 1999) (holding that a medical investigator and crime laboratory

technician were not “law enforcement officers” within

App. 39

meaning of the NMTCA); Dunn v. State of N.M., 859

P.2d 469, 470–71 (N.M. Ct. App. 1993) (holding that the

Director of the Motor Vehicle Division of the Taxation

and Revenue Department of New Mexico was not a

“law enforcement officer” within meaning of the

NMTCA). The principal duties of Defendant Ytuarte as

the Former Executive Director of the BOL were not of

a direct law enforcement nature. Rather, Defendant

Ytuarte’s duties were administrative, technical, and

regulatory in nature. Accordingly, Plaintiff ’s claims

against Defendant Ytuarte do not fall within a waiver

of immunity under the NMTCA.

Plaintiff contends that Defendant Ytuarte is not

immune from tort liability under the NMTCA because

he acted outside the scope of his duties as the Former

Executive Director of the BOL. Under the NMTCA, the

State is only liable for torts committed by public employees while acting within their “scope of duty.” See

N.M. Stat. Ann. § 41-4-4(D). The NMTCA defines

“scope of duties” as “performing any duties that a public employee is requested, required or authorized to

perform by the governmental entity, regardless of the

time and place of performance.” N.M. Stat. Ann. § 414-3(G).

According to the Supreme Court of New Mexico,

“scope of duties” includes “employees who abuse their

officially authorized duties, even to the extent of some

tortious and criminal activity.” Celaya v. Hall, 85 P.3d

239, 245 (N.M. 2004). The scope of duties is not limited

to acts “officially requested, required or authorized because, contrary to legislative intent, it would render all

App. 40

unlawful acts, which are always unauthorized, beyond

the remedial scope of the [NM]TCA.” Id. In order for

an act to be within the scope of duties “there must be

a connection between the public employee’s actions at

the time of the incident and the duties the public employee was “requested, required or authorized” to perform.” Id. (citing N.M. Stat. Ann. § 41-4-3(G)).

For instance, in Seeds v. Lucero, 113 P.3d 859 (N.M.

Ct. App. 2005), the New Mexico Court of Appeals held

that city officials’ “utilizing the machinery of city government” against private individuals for personal motives was covered by the NMTCA. Id. at 863. In Vigil v.

State Auditor’s Office, 116 P.3d 854 (N.M. Ct. App.

2005), the Court of Appeals held that the state auditor

who conducted audits in violation of statute, and instituted false audits, was covered by the NMTCA. See id.

at 859. Additionally, in Henning v. Rounds, 171 P.3d

317 (N.M. Ct. App. 2007), the New Mexico Court of Appeals held that a school principal’s allegedly false and

misleading comments and evaluations of a teacher

were actions committed within the scope of duties. See

id. at 320–22. If these types of actions are within the

scope of duties, then the actions of Defendant Ytuarte

in issuing the BOL decision and notice of violation

clearly fall within his scope of duties as the Former Executive Director of the BOL.

Plaintiff contends that his conspiracy allegations

fall outside the scope of the NMTCA. More specifically,

Plaintiff argues that the conspiracy places Defendant

Ytuarte outside the protection of the NMTCA and subjects him to personal liability. It bears underscoring

App. 41

that “a public employee may be within the scope of authorized duty even if the employee’s acts are fraudulent, intentionally malicious, or even criminal.” Seeds,

113 P.3d 862 (citing Risk Mgmt. Div. v. McBrayer, 14

P.3d 43, 48 (N.M. Ct. App. 2000) (explaining that “the

legislature likely foresaw the possibility that a public

employee could abuse the duties actually requested,

required or authorized by his state employer and

thereby commit malicious, even criminal acts that

were unauthorized, yet incidental to the performance

of those duties”)). Consequently, assuming arguendo

that Defendant Ytuarte engaged in a conspiracy, his

wrongful motive would be irrelevant, as long as there

is “a connection between the public employee’s actions

at the time of the incident and the duties the public

employee was requested, required or authorized to perform.” Celaya, 85 P.3d at 245. In that Defendant

Ytuarte’s actions in issuing the BOL decision and notice of violation were within the scope of his duties as

the Former Executive Director of the BOL, his actions

were within the scope of authorized duty. For this reason, Defendant Ytuarte is covered by the NMTCA.

Additionally, the NMTCA provides that “[a]ctions

against a governmental entity or a public employee for

torts shall be forever barred, unless such action is commenced within two years after the date of occurrence

resulting in loss, injury or death.” N.M. Stat. Ann. § 414-15. The last action of the BOL that could potentially

support Plaintiff ’s tort claims against Defendant

Ytuarte occurred on February 26, 2010. Plaintiff filed

this action on April 23, 2015, more than five years after

App. 42

the date of occurrence. Accordingly, Plaintiff ’s tort

claims against Defendant Ytuarte are barred by the

two-year statute of limitations in the NMTCA.

IV. Conclusion

Plaintiff ’s claims against Defendant Ytuarte are

barred by the statute of limitations, judicial immunity,

qualified immunity, and the New Mexico Tort Claims

Act.

THEREFORE,

IT IS ORDERED that Defendant Eduard

Ytuarte’s Motion for Judgment on the Pleadings (Doc.

78) is GRANTED.

/s/ Robert Brack

ROBERT C. BRACK

UNITED STATES

DISTRICT JUDGE

App. 43

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

DR. WILLIAM M. TURNER,

Plaintiff,

v.

No. 1:15-cv-00339 RB/SCY

MIDDLE RIO GRANDE CONSERVANCY

DISTRICT; SUBASH SHAH, Former Executive

Director of the Middle Rio Grande Conservancy

District (MRGCD) and former Chief Engineer

and former Chairman of the New Mexico

Board of Licensure for Professional Engineers

and Professional Land Surveyors; DENNIS

DOMRZALSKI, Former MRGCD Public

Information Officer; JOHN DOES, Members

or Former Members of the MRGCD; MARY

SMITH, New Mexico Assistant Attorney

General; JOHN DOES, Members or Former

Members of the New Mexico Board of

Licensure for Professional Engineers and

Land Surveyors; EDUARD YTUARTE, Former

Executive Director, New Mexico Board of

Licensure for Professional Engineers and Land

Surveyors; JOHN T. ROMERO, Former Chair

of the Engineering Committee, New Mexico

Board of Licensure for Professional Engineers

and Land Surveyors; and JOHN DOES, of KOB

Channel 4 News of Albuquerque; and KOB-TV,

Defendants.

App. 44

MEMORANDUM OPINION AND ORDER

(Filed Feb. 7, 2017)

THIS MATTER comes before the Court upon Defendant John T. Romero’s Motion for Judgment on the

Pleadings. (Doc. 76.) Jurisdiction arises under 28

U.S.C. §§ 1331 and 1367. Having considered the submissions of counsel and relevant law, the Court will

GRANT this motion.

I.

Background

On April 23, 2015 Plaintiff filed suit in this Court

against the Middle Rio Grande Conservancy District

(“MRGCD”), MRGCD employees, and members of the

Board of Licensure for Professional Engineers and Professional Land Surveyors (“BOL”), including Defendant Romero. (Doc. 1.) In his First Amended Verified

Complaint to Recover Damages Due to Deprivations of

Civil Rights/Violations of the United States and New

Mexico Constitutions, Civil Conspiracy, and for Common Law Torts (“Amended Complaint”), Plaintiff alleges the following facts. (Doc. 3.)

Plaintiff is “an internationally recognized hydrogeologist with more than 40 years of national and international consulting experience in hydrology, geology, and related fields.” (Id.) In June 2005, Plaintiff was

elected to a four-year term on the Board of Directors of

the MRGCD. (Id.) During his campaign and throughout his term on the MRGCD Board of Directors, Plaintiff sought to expose and correct multiple acts of

App. 45

malfeasance perpetrated by Defendant Shah, Executive Director of the MRGCD, and Defendant Domrzalski, Public Information Officer of the MRGCD. (Id.) On

February 27, 2006, Plaintiff delivered a presentation to

the MRGCD in which he asserted that it was inappropriate to utilize “un-engineered rip-rap” to reinforce

ditch roads within the MRGCD. (Id.)

On April 24, 2007, Defendant Dennis Domrzalski,

Former MRGCD Public Information Officer, filed a

complaint with the BOL accusing Plaintiff of practicing engineering without a license. (Doc. 3.) Defendant

Shah was the executive director of the MRGCD, as well

as the Chairman of the BOL. (Id.) Defendant Shah dictated the complaint to Defendant Domrzalski. (Id.) Defendants Shah and Domrzalski knew that Plaintiff

was immune from the complaint because he was a

board member of the MRGCD and they filed the complaint with the intent to harass Plaintiff and oust him

from the MRGCD Board. (Id.) Defendant Shah pressured Defendant Eduard Ytuarte, Former Executive

Director of the BOL, to hold an administrative hearing

to cast negative publicity on Plaintiff before the

MRGCD Board elections. (Id.)

On February 26, 2010, the BOL issued a decision

concluding that Plaintiff had practiced engineering

without a license in connection with his presentation

concerning the un-engineered rip-rap. See NM Bd. of

Licensure for Prof ’l Eng’s & Prof ’l Surveyors v. Turner,

303 P.3d 875, 878 (N.M. Ct. App. 2013). At the time the

BOL issued its decision, Defendant Romero was Chair

of the Engineering Committee of the BOL. (Doc. 3.)

App. 46

Defendant Romero drafted the decision in consultation

with Defendant Eduard Ytuarte, the Former Executive

Director of the BOL. (Id.)

Plaintiff appealed the BOL decision to the Second

Judicial District Court of the State of New Mexico.

(Doc. 3.) On September 29, 2011, the Second Judicial

District Court found that Plaintiff had not engaged in

the practice of engineering without a license and that

the BOL’s decision violated Plaintiff ’s First Amendment rights to free speech. (Id.) The New Mexico Attorney General’s Office, through Defendant Smith,

appealed the decision to the New Mexico Court of Appeals. (Id.) On April 24, 2013, the New Mexico Court of

Appeals upheld the District Court’s decision that the

BOL’s decision violated Plaintiff ’s First Amendment

rights to free speech. (Id.)

In Counts I, IV, V, and VI of the Amended Complaint, Plaintiff alleges violation of procedural due process, conspiracy to violate Plaintiff ’s constitutional

rights, civil conspiracy, and malicious prosecution/

abuse of process against Defendant Romero. (Doc. 3.)

These claims are based on the factual allegations that

Defendant Romero was the Chair of the Engineering

Committee of the BOL when the BOL’s decision was

issued, Defendant Romero reached the decision during

meetings without an actual hearing, and Defendant

Romero drafted the decision in consultation with Defendant Ytuarte. (Id.)

Defendant Romero moves for judgment on the

pleadings on the grounds that the claims against him

App. 47

are barred by the statute of limitations, judicial immunity, qualified immunity, and the New Mexico Tort

Claims Act. (Doc. 76.) In his response brief, Plaintiff

contends that the New Mexico Tort Claims Act is inapplicable, the claims are not barred by the statute of

limitations, and Defendant Romero is not entitled to

judicial immunity or qualified immunity. (Doc. 90.)

II.

Legal Standard

When analyzing a motion for judgment on the

pleadings pursuant to Fed. R. Civ. P. 12(c), the Court

applies the same standard applicable to a motion to

dismiss pursuant to Fed. R. Civ. P. 12(b)(6). In order to

withstand a motion for judgment on the pleadings or a

motion to dismiss, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’ ” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atlantic v.

Twombly, 550 U.S. 544, 570 (2007)). The plaintiff must

nudge his “claims across the line from conceivable to

plausible.” Twombly, 550 U.S. at 570. The plaintiff

must plead “factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 570). The Court accepts

as true all of the factual allegations in the complaint

and construes those facts in the light most favorable to

the plaintiff. See Anderson v. Merrill Lynch Pierce Fenner & Smith, Inc., 521 F.3d 1278, 1284 (10th Cir. 2008).

App. 48

III. Discussion

A. Statute of Limitations

Defendant Romero asserts that Plaintiffs claims

under 42 U.S.C. §§ 1983 and 1985 are barred by the

statute of limitations. The statute of limitations for

claims brought under Sections 1983 and 1985 is governed by the personal injury statute of limitations for

the state in which the federal district court sits.

Mondragon v. Thompson, 519 F.3d 1078, 1082 (10th

Cir. 2008); Graham v. Taylor, 640 F. App’x 766, 769

(10th Cir. 2016). In New Mexico, the statute of limitations period for personal injury actions is three years.

N.M. Stat. Ann. § 37-1-8. Plaintiff concedes that the

three-year statute of limitations applies to his civil

rights claims.

The issue in this case is when Plaintiff ’s claims

accrued. While state law provides the statute of limitations period, federal law determines the date on which

the claim accrues and the statute begins to run.

Mondragon, 519 F.3d at 1078 (citing Wallace v. Kato,

549 U.S. 384 (2007)); Graham, 640 F. App’x at 769.

State law also determines any tolling of the limitations

period, although federal law may allow for additional

tolling in rare circumstances. Mondragon, 519 F.3d at

1078 (citation omitted).

Defendants argue that Plaintiff ’s civil rights

claims accrued on February 26, 2010, when the BOL

issued it decision, and are thus time barred, because

the Complaint was filed on April 23, 2015—more than

five years later. Plaintiff responds that his claims

App. 49

accrued on April 24, 2013, when the New Mexico Court

of Appeals issued its decision. Plaintiff relies on Heck

v. Humphrey, 512 U.S. 477 (1994) for the notion that

the statute of limitations was tolled while the appeal

was pending.

Under federal law, § 1983 claims generally rely on

the common law tort principle that the claim accrues

when the plaintiff “has a complete and present cause

of action, that is, when the plaintiff can file suit and

obtain relief.” Wallace, 549 U.S. at 388 (quoting Bay

Area Laundry & Dry Cleaning Pension Tr. Fund v. Febar Corp. of Cal., 522 U.S. 192, 201 (1997)) (internal

citations omitted). “A civil rights action accrues when

the plaintiff knows or has reason to know of the injury

which is the basis of the action.” Price v. Philpot, 420

F.3d 1158, 1162 (10th Cir. 2005). It is not necessary

that the plaintiff know of all the evidence that he ultimately relies on for the statute of limitations to accrue.

Id. Additionally, Heck is not helpful to Plaintiff because

it applies only to claims that would imply the invalidity of a criminal conviction or sentence. See Beck v. City

of Muskogee Police Dep’t, 195 F.3d 553, 557 (10th Cir.

1999). As Plaintiff was not criminally convicted or sentenced, Heck is inapplicable.

The BOL issued its decision on February 26, 2010.

Plaintiff had reason to know of his alleged injury no

later than that date. However, Plaintiff did not file this

lawsuit until April 23, 2015, which was more than

three years after the claims accrued. Accordingly,

Defendant Romero is entitled to judgment on the

App. 50

pleadings as to Plaintiff ’s civil rights claims under 42

U.S.C. §§ 1983 and 1985.

B. Judicial Immunity

Defendant Romero claims entitlement to judicial

immunity. Judges acting in their judicial capacity are

absolutely immune from civil lawsuits based on their

actions, unless the judge acted clearly without any colorable claim of jurisdiction. Stump v. Sparkman, 435

U.S. 349, 356–57 (1978). Judicial immunity applies

“however erroneous the act may have been, and however injurious in its consequences it may have proved

to the plaintiff.” Cleavinger v. Saxner, 474 U.S. 193,

199–200 (1985) (quoting Bradley v. Fisher, 80 U.S. 335,

347 (1872)). “A judge is immune from liability for his

judicial acts even if his exercise of authority is flawed

by the commission of grave procedural errors.” Moss v.

Kopp, 559 F.3d 1155, 1163–64 (10th Cir. 2009) (internal

quotations marks and citations omitted). A judge lacks

immunity only when he acts in the “clear absence of all

jurisdiction,” Bradley, 80 U.S. at 351, or performs an

act that is not “judicial” in nature. Sparkman, 435 U.S.

at 360.

The Tenth Circuit has recognized that “officials in

administrative hearings can claim the absolute immunity that flows to judicial officers if they are acting

in a quasi-judicial fashion.” Guttman v. Khalsa, 446

F.3d 1027, 1033 (10th Cir. 2006) (citing Butz v. Economou, 438 U.S. 478, 514 (1978)). For an official at an administrative hearing to enjoy absolute immunity, “(a)

App. 51

the officials’ functions must be similar to those involved in the judicial process, (b) the officials’ actions

must be likely to result in damages lawsuits by disappointed parties, and (c) there must exist sufficient safeguards in the regulatory framework to control

unconstitutional conduct.” Guttman, 446 F.3d at 1033

(quoting Horwitz v. State Bd. of Med. Examr’s, 822 F.2d

1508, 1513 (10th Cir. 1987) (internal quotation marks

omitted).

Plaintiff alleges that Defendant Romero, who was

the Chair of the Engineering Committee of the BOL,

drafted the administrative decision adverse to Plaintiff. The BOL is the agency tasked with the regulation

of the licensure of engineers and surveyors in New

Mexico. See N.M. Stat. Ann. § 61-23-24. Even assuming

that Defendant Romero reached the decision during

meetings without a formal hearing and drafted the decision in consultation with Defendant Ytuarte, Defendant Romero acted within the jurisdiction of the BOL to

“investigate and initiate a hearing on a complaint

against a person who does not have a license, who is

not exempt from the Engineering and Surveying Practice Act [N.M. Stat. Ann. § 61-23-1] and who acts in the

capacity of a professional engineer within the meaning

of Engineering and Surveying Practices Act.” N.M.

Stat. Ann. § 61-23-23.1(A). Therefore, Defendant

Romero acted within the jurisdiction of the BOL when

the decision issued that determined Plaintiff had practiced engineering without a license. Accordingly, Defendant Romero is protected by absolute judicial

immunity.

App. 52

C. Qualified Immunity

Defendant Romero raises the defense of qualified

immunity in response to Plaintiff ’s civil rights claims

under 42 U.S.C. §§ 1983 and 1985. In order to overcome

Defendant Romero’s claim of qualified immunity,

Plaintiff must show that (1) Defendant Romero violated a constitutional right; and (2) that right was

“clearly established” at the time of the challenged conduct. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). The

Court may consider either part of this two-prong test

first. al-Kidd, 563 U.S. at 735 (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).

In determining whether Defendant Romero violated Plaintiff ’s due process rights, the Court must determine: “(1) did [Plaintiff ] possess a protected interest

such that the due process protections were applicable;

and, if so, then (2) was [Plaintiff ] afforded an appropriate level of process.” Brown v. Montoya, 662 F.3d 1152,

1167 (10th Cir. 2011) (quoting Merrifield v. Bd. of Cnty.

Comm’rs, 654 F.3d 1073, 1078 (10th Cir. 2011)). “An individual has a property interest in a benefit for purposes of due process protection only if he has a

‘legitimate claim of entitlement’ to the benefit, as opposed to a mere ‘abstract need or desire’ or ‘unilateral

expectation.’ ” Teigen v. Renfrow, 511 F.3d 1072, 1078–

79 (10th Cir. 2007) (citing Bd. of Regents of State Colls.

v. Roth, 408 U.S. 564, 577 (1972)). Plaintiff has failed to

allege sufficient facts that he had a clearly established

protected property right. Additionally, there is no

Tenth Circuit or Supreme Court case that would indicate that the process received by Plaintiff in connection

App. 53

with the BOL decision was inadequate. Accordingly,

Defendant Romero is entitled to qualified immunity as

to Plaintiff ’s civil rights claims under 42 U.S.C.

§§ 1983 and 1985.

D. The New

(NMTCA)

Mexico Tort

Claims Act

Defendant Romero asserts that Plaintiffs tort

claims are barred by the NMTCA. The NMTCA is the

“exclusive remedy against a governmental entity or

public employee for any tort for which immunity has

been waived under the Tort Claims Act and no other

claim, civil action or proceeding for damages, by reason

of the same occurrence, may be brought against a governmental entity or against the public employee or his

estate whose act or omission gave rise to the suit or

claim.” N.M. Stat. Ann. § 41-4-17(A). A public employee

of New Mexico may not be sued unless the plaintiffs

cause of action fits within one of the exceptions granted

to governmental entities and public employees in the

NMTCA. See Begay v. State, 723 P.2d 252, 255 (N.M.

Ct. App. 1985), rev’d on other grounds by Smialek v. Begay, 721 P.2d 1306 (N.M. 1986).

The NMTCA provides a waiver of sovereign immunity only for claims in specified categories. Plaintiff ’s claims against Defendant Romero do not fit

within any of these categories. The one waiver that

could potentially permit a claim for malicious abuse of

process applies only to claims against law enforcement

officers. See N.M. Stat. Ann. § 41-4-12. This waiver is

App. 54

inapplicable herein because Defendant Romero, Former Chair of the Engineering Committee of the BOL,

was not a “law enforcement officer” within the meaning

of the NMTCA.

The NMTCA defines “law enforcement officer” to

mean “a full-time salaried public employee of a governmental entity whose principal duties under law are to

hold in custody any person accused of a criminal offense, to maintain public order or to make arrests for

crimes, or members of the National Guard when called

to active duty by the governor.” N.M. Stat. Ann. § 41-412.. This definition encompasses only those persons

whose principal duties include those of a direct law enforcement nature. See Anchondo v. NM Corr. Dep’t, 666

P.2d 1255, 1256 (N.M. 1983) (holding that the Secretary of Corrections and a state penitentiary warden

were not “law enforcement officers” within the meaning of the NMTCA).

Notably, state officials whose duties involve principally administrative, technical, or regulatory matters

are not considered law enforcement officers for the purposes of the NMTCA. See Limacher v. Spivey, 198 P.3d

370, 376 (N.M. Ct. App. 2008) (holding that an employee of the Office of the State Engineer of New Mexico was not a law enforcement officer); Dunn v.

McFeeley, 984 P.2d 760, 766 (N.M. Ct. App. 1994) (holding that a medical investigator and crime laboratory

technician were not “law enforcement officers” within

meaning of the NMTCA); Dunn v. State of NM, 859 P.2d

469, 470-71 (N.M. Ct. App. 1993) (holding that the Director of the Motor Vehicle Division of the Taxation and

App. 55

Revenue Department of New Mexico was not a “law

enforcement officer” within meaning of the NMTCA).

The principal duties of Defendant Romero as Former

Chair of the Engineering Committee of the BOL were

not of a direct law enforcement nature. Rather, Defendant Romero’s duties were administrative, technical,

and regulatory in nature. Accordingly, Plaintiff ’s

claims against Defendant Romero do not fall within a

waiver of immunity under the NMTCA.

Plaintiff contends that Defendant Romero is not

immune from tort liability under the NMTCA because

he acted outside the scope of his duties as Former

Chair of the Engineering Committee of the BOL. Under the NMTCA, the State is only liable for torts committed by public employees while acting within their

“scope of duty.” See N.M. Stat. Ann § 41-4-4(D). The

NMTCA defines “scope of duties” as “performing any

duties that a public employee is requested, required or

authorized to perform by the governmental entity, regardless of the time and place of performance.” N.M.

Stat. Ann. § 41-4-3(G).

According to the Supreme Court of New Mexico,

“scope of duties” includes “employees who abuse their

officially authorized duties, even to the extent of some

tortious and criminal activity.” Celaya v. Hall, 85 P.3d

239, 245 (N.M. 2004). The scope of duties is not limited

to acts “officially requested, required or authorized because, contrary to legislative intent, it would render all

unlawful acts, which are always unauthorized, beyond

the remedial scope of the [NM]TCA.” Id. In order for

an act to be within the scope of duties “there must be

App. 56

a connection between the public employee’s actions at

the time of the incident and the duties the public employee was “requested, required or authorized” to perform.” Id. (citing N.M. Stat. Ann. § 41-4-3(G)).

For instance, in Seeds v. Lucero, 113 P.3d 859 (N.M.

Ct. App. 2005), the New Mexico Court of Appeals held

that city officials’ “utilizing the machinery of city government” against private individuals for personal motives was covered by the NMTCA. Id. at 863. In Vigil v.

State Auditor’s Office, 116 P.3d 854 (N.M. Ct. App.

2005), the Court of Appeals held that the state auditor

who conducted audits in violation of statute, and instituted false audits, was covered by the NMTCA. See id.

at 859. Additionally, in Henning v. Rounds, 171 P.3d

317 (N.M. Ct. App. 2007), the New Mexico Court of Appeals held that a school principal’s allegedly false and

misleading comments and evaluations of a teacher

were actions committed within the scope of duties. See

id. at 320–22. If these types of actions are within the

scope of duties, then the actions of Defendant Romero

in issuing the BOL decision clearly fall within the

scope of his duties.

Plaintiff contends that his conspiracy allegations

fall outside the scope of the NMTCA. More specifically,

Plaintiff argues that the conspiracy places Defendant

Romero outside the protection of the NMTCA and subjects him to personal liability. It bears underscoring

that “a public employee may be within the scope of authorized duty even if the employee’s acts are fraudulent, intentionally malicious, or even criminal.” Seeds,

113 P.3d 862 (citing Risk Mgmt. Div. v. McBrayer, 14

App. 57

P.3d 43, 48 (N.M. Ct. App. 2000) (explaining that “the

legislature likely foresaw the possibility that a public

employee could abuse the duties actually requested,

required or authorized by his state employer and

thereby commit malicious, even criminal acts that

were unauthorized, yet incidental to the performance

of those duties”)). Consequently, assuming arguendo

that Defendant Romero engaged in a conspiracy, his

wrongful motive would be irrelevant, as long as there

is “a connection between the public employee’s actions

at the time of the incident and the duties the public

employee was requested, required or authorized to perform.” Celaya, 85 P.3d at 245. In that Defendant

Romero’s actions in issuing the BOL decision were

within the scope of his duties as Chair of the Engineering Committee of the BOL, his actions were with-in the

scope of authorized duty. For this reason, Defendant

Romero is covered by the NMTCA.

Additionally, the NMTCA provides that “[a]ctions

against a governmental entity or a public employee for

torts shall be forever barred, unless such action is commenced within two years after the date of occurrence

resulting in loss, injury or death.” N.M. Stat. Ann. § 414-15. The last action of the BOL that could potentially

support Plaintiffs tort claims against Defendant

Romero occurred on February 26, 2010. Plaintiff filed

this action on April 23, 2015, some three years after

the statute of limitations had expired. Accordingly,

Plaintiff ’s tort claims against Defendant Romero are

barred by the two-year statute of limitations in the

NMTCA.

App. 58

IV. Conclusion

Plaintiff ’s claims against Defendant Romero are

barred by the statute of limitations, judicial immunity,

qualified immunity, and the New Mexico Tort Claims

Act.

THEREFORE,

IT IS ORDERED that Defendant John T.

Romero’s Motion for Judgment on the Pleadings (Doc.

76) is GRANTED.

/s/ Robert Brack

ROBERT C. BRACK

UNITED STATES

DISTRICT JUDGE

App. 59

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

DR. WILLIAM M. TURNER,

Plaintiff,

v.

No. 1:15-cv-00339 RB/SCY

MIDDLE RIO GRANDE CONSERVANCY

DISTRICT; SUBASH SHAH, Former Executive

Director of the Middle Rio Grande Conservancy

District (MRGCD) and former Chief Engineer

and former Chairman of the New Mexico

Board of Licensure for Professional Engineers

and Professional Land Surveyors; DENNIS

DOMRZALSKI, Former MRGCD Public

Information Officer; JOHN DOES, Members

or Former Members of the MRGCD; MARY

SMITH, New Mexico Assistant Attorney

General; JOHN DOES, Members or Former

Members of the New Mexico Board of

Licensure for Professional Engineers and

Land Surveyors; EDUARD YTUARTE, Former

Executive Director, New Mexico Board of

Licensure for Professional Engineers and Land

Surveyors; JOHN T. ROMERO, Former Chair

of the Engineering Committee, New Mexico

Board of Licensure for Professional Engineers

and Land Surveyors; and JOHN DOES, of KOB

Channel 4 News of Albuquerque; and KOB-TV,

Defendants.

App. 60

MEMORANDUM OPINION AND ORDER

(Filed Jan. 30, 2017)

THIS MATTER came before the Court upon Defendant Mary Smith’s Motion for Judgment on the

Pleadings. (Doc. 73.) Jurisdiction arises under 28

U.S.C. §§ 1331 and 1367. Having considered the submissions of counsel and relevant law, the Court will

GRANT this motion.

I.

Background

On April 23, 2015 Plaintiff filed suit in this Court

against the Middle Rio Grande Conservancy District

(“MRGCD”), MRGCD employees, members of the

Board of Licensure for Professional Engineers and Professional Land Surveyors (“BOL”), and Defendant

Mary Smith, an Assistant New Mexico Attorney General. (Doc. 1.) In his First Amended Verified Complaint

to Recover Damages Due to Deprivations of Civil

Rights/Violations of the United States and New Mexico

Constitutions, Civil Conspiracy, and for Common Law

Torts (“Amended Complaint”), Plaintiff alleges the following facts. (Doc. 3.)

Plaintiff is “an internationally recognized hydrogeologist with more than 40 years of national and international consulting experience in hydrology, geology, and related fields.” (Id.) In June 2005, Plaintiff was

elected to a four-year term on the Board of Directors of

the MRGCD. (Id.) During his campaign and throughout his term on the MRGCD Board of Directors, Plaintiff sought to expose and correct multiple acts of

App. 61

malfeasance perpetrated by Defendant Shah, Executive Director of the MRGCD, and Defendant Domrzalski, Public Information Officer of the MRGCD. (Id.) On

February 27, 2006, Plaintiff delivered a presentation to

MRGCD in which he asserted that it was inappropriate to dump “un-engineered rip-rap” into multiple

ditch roads within the MRGCD. (Id.)

On April 24, 2007, Defendant Dennis Domrzalski,

Former MRGCD Public Information Officer, filed a

complaint with the BOL accusing Plaintiff of practicing engineering without a license. (Doc. 3.) Defendant

Subash Shah was the executive director of the

MRGCD, as well as the Chairman of the BOL. (Id.) Defendant Shah dictated the complaint to Defendant

Domrzalski. (Id.) Defendants Shah and Domrzalski

knew that Plaintiff was immune from the complaint

because he was a board member of the MRGCD and

they filed the complaint with the intent to harass

Plaintiff and oust him from the MRGCD Board. (Id.)

Defendant Shah pressured Defendant Eduard Ytuarte,

Former Executive Director of the BOL, to hold an administrative hearing to cast negative publicity on

Plaintiff before the MRGCD Board elections. (Id.)

On February 26, 2010, the BOL issued a decision

concluding that Plaintiff had practiced engineering

without a license in connection with his presentation

concerning the un-engineered rip-rap. See N.M. Bd. of

Licensure for Prof ’l Eng’s and Prof ’l Surveyors v.

Turner, 303 P.3d 875, 878 (N.M. Ct. App. 2013). At the

time the BOL issued its decision, Defendant John T.

App. 62

Romero was Chair of the Engineering Committee of

the BOL. (Doc. 3.)

Plaintiff appealed the BOL decision to the Second

Judicial District Court of the State of New Mexico.

(Doc. 3.) On September 29, 2011, the Second Judicial

District Court found that Plaintiff had not engaged in

the practice of engineering without a license and that

the BOL’s decision violated Plaintiff ’s First Amendment rights to free speech. (Id.) The New Mexico Attorney General’s Office, through Defendant Smith,

appealed the decision to the New Mexico Court of Appeals and also filed an action against Plaintiff in the

Second Judicial District Court alleging violation of

BOL rules regarding the practice of engineering without a license. (Id.) On April 24, 2013, the New Mexico

Court of Appeals upheld the District Court’s decision

that the BOL’s decision violated Plaintiff ’s First

Amendment rights to free speech. (Id.)

Plaintiff alleges, in his Amended Complaint,

Counts V and VI, claims for civil conspiracy and malicious prosecution/abuse of process against Defendant

Assistant Attorney General Mary Smith. These claims

are based on the factual allegations that Defendant

Smith appealed the Second Judicial District’s decision

to the New Mexico Court of Appeals and filed an action

against Plaintiff in the Second Judicial District Court

alleging violation of BOL rules regarding the practice

of engineering without a license. (Doc. 3.)

Defendant Smith moves for judgment on the

pleadings on the grounds that the two claims against

App. 63

her are barred by the New Mexico Tort Claims Act and

prosecutorial immunity. (Doc. 73.) In his response

brief, Plaintiff contends that the New Mexico Tort

Claims Act is inapplicable and Defendant Smith is not

entitled to prosecutorial immunity. (Doc. 89.)

II.

Legal Standard

When analyzing a motion for judgment on the

pleadings pursuant to Fed. R. Civ. P. 12(c), the Court

applies the same standard applicable to a motion to

dismiss pursuant to Fed. R. Civ. P. 12(b)(6). In order to

withstand a motion for judgment on the pleadings or a

motion to dismiss, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’ ” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atlantic v.

Twombly, 550 U.S. 544, 570 (2007)). The plaintiff must

nudge his “claims across the line from conceivable to

plausible.” Twombly, 550 U.S. at 570. The plaintiff

must plead “factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 570). The Court accepts

as true all of the factual allegations in the complaint

and construes those facts in the light most favorable to

the plaintiff. See Anderson v. Merrill Lynch Pierce Fenner & Smith, Inc., 521 F.3d 1278, 1284 (10th Cir. 2008).

App. 64

III. Discussion

A. The New Mexico Tort Claims Act

1. The claims against Defendant Smith

do not fall within a waiver of immunity

Defendant Smith asserts that Plaintiff ’s claims

against her are barred by the New Mexico Tort Claims

Act (“NMTCA”). The NMTCA is the “exclusive remedy

against a governmental entity or public employee for

any tort for which immunity has been waived under

the Tort Claims Act and no other claim, civil action or

proceeding for damages, by reason of the same occurrence, may be brought against a governmental entity

or against the public employee or his estate whose act

or omission gave rise to the suit or claim.” N.M. Stat.

Ann. § 41-4-17(A). A public employee of New Mexico

may not be sued unless the plaintiffs cause of action

fits within one of the exceptions granted to governmental entities and public employees in the NMTCA. See

Begay v. State, 723 P.2d 252, 255 (N.M. Ct. App. 1985),

rev’d on other grounds by Smialek v. Begay, 721 P.2d

1306 (N.M. 1986).

The NMTCA provides a waiver of sovereign immunity only for claims in specified categories. The one

waiver that could potentially permit a claim for malicious abuse of process applies only to claims against

law enforcement officers. See N.M. Stat. Ann. § 41-4-12.

This waiver is inapplicable herein because Defendant

Smith, an assistant attorney general, is not a “law enforcement officer” within the meaning of the NMTCA.

App. 65

The NMTCA defines “law enforcement officer” to

mean “a full-time salaried public employee of a governmental entity whose principal duties under law are to

hold in custody any person accused of a criminal offense, to maintain public order or to make arrests for

crimes, or members of the National Guard when called

to active duty by the governor.” N.M. Stat. Ann. § 41-412. § 41-4-3(D). Prosecuting attorneys are not considered law enforcement officers for the purposes of the

NMTCA. See Coyazo v. State, 120 N.M. 47, 51 (N.M. Ct.

App. 1995). In Coyazo, the New Mexico Court of Appeals utilized a “practical approach” when it made that

determination, and noted that “it is clear that district

attorneys and their staffs are not engaged in the same

activities as the officer on patrol when involved in the

judicial phase of the criminal process.” Id. Thus, the

New Mexico Court of Appeals held that district attorneys were not law enforcement officers within the

meaning of the NMTCA.

The duties of the New Mexico attorney general’s

office are defined in N.M. Stat. Ann. § 8-5-2. They involve the general representation of the state, and are

not limited to criminal prosecutions. According to

Plaintiff ’s allegations, Defendant Smith, appealed the

decision to the New Mexico Court of Appeals and filed

an action against Plaintiff in the Second Judicial District Court alleging violation of BOL rules regarding

the practice of engineering without a license. (Doc. 3.)

The appeal and the district court action involve civil,

rather than criminal, representation. If a district attorney, whose primary duty is criminal prosecution, is not

App. 66

a law enforcement officer, then an assistant attorney

general is certainly not a law enforcement officer. Accordingly, Plaintiff ’s claims against Defendant Smith

do not fall within a waiver of immunity under the

NMTCA.

2. Defendant Smith acted within the

scope of her duties

Plaintiff contends that Defendant Smith is not immune from tort liability under the NMTCA because

she acted outside the scope of her duties as an Assistant Attorney General. Under the NMTCA, the State

is only liable for torts committed by public employees

while acting within their “scope of duty.” See N.M. Stat.

Ann § 41-4-4(D). The NMTCA defines “scope of duties”

as “performing any duties that a public employee is requested, required or authorized to perform by the governmental entity, regardless of the time and place of

performance.” N.M. Stat. Ann. § 41-4-3(G).

According to the Supreme Court of New Mexico,

“scope of duties” includes “employees who abuse their

officially authorized duties, even to the extent of some

tortious and criminal activity.” Celaya v. Hall, 85 P.3d

239, 245 (N.M. 2004). The scope of duties is not limited

to acts “officially requested, required or authorized because, contrary to legislative intent, it would render all

unlawful acts, which are always unauthorized, beyond

the remedial scope of the [NM]TCA.” Id. In order for

an act to be within the scope of duties “there must be

a connection between the public employee’s actions at

App. 67

the time of the incident and the duties the public employee was “requested, required or authorized” to perform.” Id. (citing N.M. Stat. Ann. § 41-4-3(G)).

For instance, in Seeds v. Lucero, 113 P.3d 859 (N.M.

Ct. App. 2005), the New Mexico Court of Appeals held

that city officials’ “utilizing the machinery of city government” against private individuals for personal motives was covered by the NMTCA. Id., 113 P.3d at 863.

In Vigil v. State Auditor’s Office, 116 P.3d 854 (Ct. App.

2005), the New Mexico Court of Appeals held that the

state auditor who conducted audits in violation of statute, and instituted false audits, was covered by the

NMTCA. See id. at 859. Additionally, in Henning v.

Rounds, 171 P.3d 317 (N.M. Ct. App. 2007), the New

Mexico Court of Appeals held that a school principal’s

allegedly false and misleading comments and evaluations of a teacher were actions committed within the

scope of duties. See 171 P.3d at 320-22. If these types

of actions are within the scope of duties, then the actions of Defendant Smith in filing the appeal and district court action clearly fall within the scope of duties

of an Assistant Attorney General. Accordingly, Defendant Smith is covered by the NMTCA.

3. Plaintiff ’s claims are barred by the

statute of limitations in the NMTCA

The NMTCA provides that “[a]ctions against a

governmental entity or a public employee for torts

shall be forever barred, unless such action is commenced within two years after the date of occurrence

App. 68

resulting in loss, injury or death.” N.M. Stat. Ann. § 414-15. According to Plaintiff ’s Amended Complaint, the

New Mexico Court of Appeals upheld the Second Judicial District Court’s reversal of the BOL order on April

15, 2013. Thus, any damage suffered by Plaintiff as a

consequence of the appeal must have occurred before

that date. However, Plaintiff did not file suit until April

23, 2015, more than two years after the conclusion of

the appeal. Accordingly, Plaintiff ’s claims against Defendant Smith are time-barred by the two-year statute

of limitations in the NMTCA.

Plaintiff asserts that the NMTCA is inapplicable

because his claims against Defendant Smith are based

on 42 U.S.C. § 1983. In order to state a claim under Section 1983, Plaintiff must allege deprivation of a federally protected right by a person acting under color of

state law. Schaffer v. Salt Lake City Corp., 814 F.3d

1151, 1155 (10th Cir. 2016). To the extent that Plaintiff

alleges a claim under Section 1983 it would be barred

by the statute of limitations.

The statute of limitations for claims brought under 42 U.S.C. § 1983 is governed by the personal injury

statute of limitations for the state in which the federal

district court sits. Mondragon v. Thompson, 519 F.3d

1078, 1082 (10th Cir. 2008) (citing Wilson v. Garcia,

471 U.S. 251 (1985)); Graham v. Taylor, 640 F. App’x

766, 769 (10th Cir. 2016). In New Mexico, the statute

of limitations period for personal injury actions is

three years. N.M. Stat. Ann. § 37-1-8. While state law

provides the statute of limitations period, federal law

determines the date on which the claim accrues and

App. 69

the statute begins to run. Mondragon, 519 F.3d at 1078

(citing Wallace v. Kato, 549 U.S. 384 (2007)); Graham,

640 F. App’x at769.

Under federal law, § 1983 claims generally rely on

the common law tort principle that the claim accrues

when the plaintiff “has a complete and present cause

of action, that is, when the plaintiff can file suit and

obtain relief.” Wallace, 549 U.S. at 388 (quoting Bay

Area Laundry & Dry Cleaning Pension Tr. Fund v. Febar Corp. of Cal., 522 U.S. 192, 201 (1997)) (citations

omitted). Defendant Smith’s last relevant action occurred on September 24, 2011, when she filed the Reply Brief in the Court of Appeals. (Doc. 101-1.) In that

Plaintiff filed this action more than three years later;

any Section 1983 action would be time-barred.

B. Prosecutorial Immunity

Defendant Smith claims entitlement to absolute

prosecutorial immunity. A prosecutor acting within the

scope of her prosecutorial function is protected by absolute immunity from civil suits. See Imbler v. Pachtman, 424 U.S. 409, 420 (1976). In evaluating an

assertion of absolute immunity, the Supreme Court of

the United States applies a functional approach, “focus[ing] on the conduct for which immunity is claimed,

not on the harm that the conduct may have caused or

the question of whether it was lawful.” Buckley v. Fitzsimmons, 509 U.S. 259, 271 (1993). When a prosecutor

is acting as an advocate, and performing duties intimately associated with the judicial process, immunity

App. 70

attaches and bars any civil suit against her. See Imbler,

424 U.S. at 431; Buckley, 509 U.S. at 272–273.

The Supreme Court has stated that activities involving professional judgment are in the nature of advocacy, and are therefore protected by absolute

immunity. See Kalina v. Fletcher, 522 U.S. 118, 126

(1997); Buckley, 509 U.S. at 274. In Kalina, the Supreme Court found such activities as drafting of the

certification to the court, determining that the evidence justified a probable cause finding, deciding to file

charges, presenting information, and making a motion

to the court to be the work of an advocate, involving

“the exercise of professional judgment.” 522 U.S. at

130. The Tenth Circuit has explained that “absolute

prosecutorial immunity extends to state attorneys and

agency officials who perform functions analogous to

those of a prosecutor in initiating and pursuing civil

and administrative enforcement proceedings.” Pfeiffer

v. Hartford Fire Ins. Co., 929 F.2d 1484, 1489 (10th Cir.

1991). Any acts undertaken by Defendant Smith in the

course of her role as an Assistant Attorney General are

entitled to absolute immunity.

The actions on which Plaintiff ’s claims against

Defendant Smith are based are all within the functions

of an Assistant Attorney General acting as an advocate. Plaintiff is aggrieved with the way in which Defendant Smith filed the district court action and

prosecuted the appeal. The conduct of Defendant

Smith that Plaintiff calls into question is precisely the

type of conduct covered by prosecutorial immunity. Indeed, the Amended Complaint contains no factual

App. 71

allegation of any conduct by Defendant Smith outside

of her role as an Assistant Attorney General. Therefore, the claims against Defendant Smith are barred by

absolute prosecutorial immunity.

IV. Conclusion

Plaintiff ’s claims against Defendant Smith are

barred by the New Mexico Tort Claims Act and prosecutorial immunity.

THEREFORE,

IT IS ORDERED that Defendant Mary Smith’s

Motion for Judgment on the Pleadings (Doc. 73) is

GRANTED.

/s/ Robert Brack

ROBERT C. BRACK

UNITED STATES

DISTRICT JUDGE

App. 72

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

DR. WILLIAM M. TURNER,

Plaintiff,

v.

No. 1:15-CV-00339-RB/SCY

MIDDLE RIO GRANDE CONSERVANCY

DISTRICT; SUBASH SHAH, Former Executive

Director of the Middle Rio Grande Conservancy

District (MRGCD) and former Chief Engineer and

former Chairman of the New Mexico Board of

Licensure for Professional Engineers and Professional

Land Surveyors; DENNIS DOMRZALSKI, Former

MRGCD Public Information Officer; JOHN DOES,

Members or Former Members of the MRGCD;

MARY SMITH, New Mexico Assistant Attorney

General; JOHN DOES, Members or Former

Members of the New Mexico Board of Licensure

for Professional Engineers and Land Surveyors;

EDUARD YTUARTE, Former Executive Director,

New Mexico Board of Licensure for Professional

Engineers and Land Surveyors; JOHN T. ROMERO,

Former Chair of the Engineering Committee,

New Mexico Board of Licensure for Professional

Engineers and Land Surveyors; JOHN DOES,

of KOB Channel 4 News of Albuquerque;

and KOB-TV,

Defendants.

App. 73

MEMORANDUM OPINION AND ORDER

(Filed Jun. 1, 2017)

This matter is before the Court on Plaintiff ’s Motion to Alter or Amend Judgment Pursuant to Fed. R.

Civ. Pro., Rules [sic] 59, filed on March 24, 2017 (Doc.

116). Jurisdiction arises under 28 U.S.C. §§ 1331 and

1367.

On February 24, 2017, the Court entered its Final

Order in favor of Defendants and dismissed the case

with prejudice. (Doc. 115.) The Court had previously

granted Defendants’ MRGCD, Shah, and Domrzalski’s

Motion to Dismiss (see Docs. 70, 114), Defendant

Smith’s Motion for Judgment on the Pleadings (see

Docs. 73, 111), Defendant Romero’s Motion for Judgment on the Pleadings (see Docs. 76, 112), and Defendant Ytuarte’s Motion for Judgment on the Pleadings

(see Docs. 78, 113).

Dr. William Turner (Plaintiff ) now moves the

Court to reconsider these four opinions and argues

that the Court overlooked and/or misconstrued controlling law and overlooked factual details as alleged

in Plaintiff ’s First Amended Complaint. (See Doc. 116.)

Having considered the submissions of counsel and relevant law, the Court will DENY the motion.

I.

Procedural and Factual Background

On April 23, 2015, Plaintiff filed suit in this Court

against a variety of Defendants. (Doc. 1.) Plaintiff ’s

App. 74

First Amended Verified Complaint alleges seven

causes of action: (1) violations of his Due Process and

Fifth Amendment rights against Defendants Shah,

Domrzalski, Romero, and Ytuarte; (2) violations of his

First Amendment rights by Defendants Shah, Domrzalski, John Does of MRGCD, and John Does of the

Board of Licensure for Professional Engineers and Professional Land Surveyors (BOL); (3) violations of his

Equal Protection rights and discrimination by Defendants Shah, Domrzalski, and John Does of KOB Channel 4; (4) conspiracy to violate Plaintiff ’s First and

Fourteenth Amendment (equal protection) rights pursuant to 42 U.S.C. § 1985(3) by Defendants Shah, Domrzalski, Ytuarte, and John Does of BOL; (5) civil

conspiracy by Defendants Shah, Domrzalski, Romero,

Ytuarte, Smith, and John Does of MRGCD; (6) malicious prosecution/abuse of process by Defendants

Shah, Domrzalski, John Does of the MRGCD, Ytuarte,

Romero, John Does of the BOL, and Smith; and (7)

claims pursuant to the New Mexico Tort Claims Act,

defamation, and slander by Defendants Shah, Domrzalski, and John Doe of KOAT. (See Doc. 3.)

The Court provided a summary of the pertinent

facts in a light most favorable to Plaintiff in its original

Memorandum Opinion and Orders and incorporates

those facts herein. (See Docs. 111, at 1–4; 112, at 1–4;

113, at 1–4; 114, at 1–4.)

App. 75

II.

Legal Standards

A. Motion to Alter or Amend Judgment

Standard

A motion to alter or amend judgment pursuant to

“rule 59(e) is an ‘inappropriate vehicle[ ] to reargue an

issue previously addressed by the court when the motion merely advances new arguments, or supporting

facts which were available at the time of the original

motion.’ ” Jarita Mesa Livestock Grazing Ass’n v. U.S.

Forest Serv., 58 F. Supp. 3d 1191, 1218 (D.N.M. 2014)

(quoting Servants of Paraclete v. Does, 204 F.3d 1005,

1012 (10th Cir. 2000)). “Grounds warranting a motion

to reconsider include (1) an intervening change in the

controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent

manifest injustice.” Id. (quoting Servants of Paraclete,

204 F.3d at 1012 (internal citation omitted)). “Thus, a

motion for reconsideration is appropriate where the

court has misapprehended the facts, a party’s position,

or the controlling law.” Id. (quoting Servants of Paraclete, 204 F.3d at 1012 (internal citation omitted)). “A

district court has considerable discretion in ruling on

a motion to reconsider under rule 59(e).” Id. (citing

Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir.

1997)).

B. Motion to Dismiss Standard

The Court uses the same standard to analyze both

a motion to dismiss and a motion for judgment on the

pleadings. Atl. Richfield Co. v. Farm Credit Bank of

App. 76

Wichita, 226 F.3d 1138, 1160 (10th Cir. 2000) (citation

omitted). In order to withstand a motion to dismiss or

a motion for judgment on the pleadings, the complaint

“must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its

face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). The plaintiff must nudge his “claims across the

line from conceivable to plausible. . . .” Twombly, 550

U.S. at 570. The plaintiff must plead “factual content

that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S.

at 570). The Court accepts as true all of the factual allegations in the complaint and construes those facts

“in the light most favorable to the plaintiff.” See Anderson v. Merrill Lynch Pierce Fenner & Smith, Inc., 521

F.3d 1278, 1284 (10th Cir. 2008).

III. Analysis

Plaintiff alleges seven discrete points of error with

the Court’s opinions: (1) “[t]he [C]ourt overlooked the

controlling uniform precedent(s) of the Tenth Circuit

and other various other [sic] circuits on the accrual of

1983 malicious prosecution and conspiracy claims”; (2)

“[f ]or 1983 malicious prosecution, Plaintiff ’s ‘charge of

violation’ was a ‘criminal proceeding’ ”; (3) the “[C]ourt

overlooked the policy or custom or practice identified

by Plaintiff in his amended complaint and the Tenth

Circuit’s precedent in support”; (4) the “Court overlooked the factual details and/or discriminatory

App. 77

animus alleged by Plaintiff in his amended complaint”;

(5) “[t]he Court Decision is in conflict with controlling

precedent from the 10th Circuit Court of Appeals”; (6)

“Plaintiff has Sufficiently Pled Facts of a Policy or Custom of the MRGCD to Nudge His 42 U.S.C. 1983

Claims for Deprivation of His First Amendment Rights

and Conspiracy to Deprive Him of His Constitutional

Rights Across the Line for [sic] Conceivable to Plausible Such [that] the Court Committed Clear Error in

Dismissing The Claim”; and (7) “Plaintiff believes that

the present case is a Bivens type of case where government and quasi-governmental officials of New Mexico

have violated Plaintiff ’s civil rights.” (Doc. 116, at 5–

19.)

The Court addresses Plaintiff ’s first, second, and

fifth arguments together in Section III(A) and his

third, fourth, sixth, and seventh arguments in Section

III(B).

A. Plaintiff ’s claims accrued on February

26, 2010.

Plaintiff argues that the “favorable termination

rule,” as defined in Heck v. Humphrey, 512 U.S. 477

(1994), applies to his § 1983 claims, thus the Court

miscalculated the date his § 1983 claim for malicious

prosecution accrued. (Doc. 116, at 5–7, 11–15.) While

Plaintiff made substantially similar arguments in his

responses to the original motions (see Docs. 88, at 7–

14; 89, at 14–15; 90, at 9–11; 91, at 5–6), he argues that

the Court overlooked his position and/or relevant law,

App. 78

because the Court did not specifically address whether

the Tenth Circuit’s decisions in either Robinson v.

Moruffi, 895 F.2d 649 (10th Cir. 1990) or Cohen v.

Clemens, 321 F. App’x 739 (10th Cir. 2009) support the

contention that Heck is applicable to Plaintiff ’s claims,

or whether N.M. Stat. Ann. § 37-1-12 (1978) tolled the

applicable statute of limitations. (Doc. 116, at 5–7, 11–

15.)

1. Neither Cohen nor Robinson are applicable to Plaintiff ’s claims.

Plaintiff contends “the [C]ourt missed the essential element of a 1983 malicious prosecution claim that

the proceeding, whether it is criminal or civil, must finally terminate in Plaintiff ’s favor.” (Doc. 116, at 5.)

Plaintiff relies on the reasoning in Heck and its progeny to support his position. In Heck, the Supreme

Court held that:

[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or

for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove

that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal

authorized to make such determination, or

called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C.

§ 2254. A claim for damages bearing that relationship to a conviction or sentence that has

App. 79

not been so invalidated is not cognizable under § 1983.

512 U.S. at 486. As the Court noted previously, Heck

“applies only to claims that would imply the invalidity

of a criminal conviction or sentence.” (See, e.g., Doc.

112, at 6 (citing Beck v. City of Muskogee Police Dep’t,

195 F.3d 553, 557 (10th Cir. 1999)).)

Plaintiff contends that Cohen extends Heck to

claims like Plaintiff ’s. (Doc. 116, at 14.) Plaintiff quotes

a sentence from Cohen—“the rule in Heck is not limited to claims challenging the validity of crimination

convictions”—but fails to provide any context from the

case. (Id. (quoting Cohen, 321 F. App’x at 742 (internal

citations omitted)).) Cohen, “an alien detainee” bringing claims against federal officials pursuant to Bivens

v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971) and other federal statutes, alleged that the federal officials “falsified and

failed to file immigration forms related to his pending

immigration case, thereby causing him to be denied release on bond.” Cohen, 321 F. App’x at 740–41. In discussing Heck’s reach, the Tenth Circuit cited a variety

of cases that had applied Heck. Id. at 742 (quoting

Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir. 1996) (per

curiam) (“Heck applies to Bivens actions”) (internal citation omitted); Edwards v. Balisok, 520 U.S. 641

(1997) (“applying Heck to a § 1983 claim challenging

procedures used to deprive a prison inmate of good

time credits”); Huftile v. Miccio-Fonseca, 410 F.3d 1136,

1137 (9th Cir. 2005) (“applying Heck to a § 1983 claim

challenging civil commitment under California’s

App. 80

Sexually Violent Predators Act”); Hamilton v. Lyons, 74

F.3d 99, 102–03 (5th Cir. 1996) (“applying Heck to a

§ 1983 claim challenging the coercive nature of a pretrial detainee’s confinement prior to giving a statement regarding pending charges”)). None of the cited

cases are analogous to Plaintiff ’s.

Plaintiff also relies heavily on the Tenth Circuit’s

pre-Heck decision in Robinson v. Moruffi, 895 F.2d at

654–55. Plaintiff made essentially the same argument

in his earlier responses to Defendants’ motions. (See

Docs. 88, at 8–9 (discussing Robinson); 89, at 15 (incorporating the section from Doc. 88 that references Robinson); 90, at 9 (incorporating the section from Doc. 88

that references Robinson); 91, at 5 (incorporating the

section from Doc. 88 that references Robinson).)

In Robinson, the plaintiff brought a civil rights action against several defendants alleging a variety of

claims, including malicious prosecution under § 1983.

895 F.2d at 650. The plaintiff, who had been charged

with murder and armed robbery, had gone through two

criminal jury trials: the first ended in convictions,

which the New Mexico Supreme Court reversed “due

to the prosecutor’s improper examination and impeachment of an eyewitness”; the second ended in acquittal. Id. at 651–53 (citation omitted). The

defendants argued that the plaintiff ’s malicious prosecution claim was barred by the applicable statute of

limitations. Id. at 653–54 (citing Wilson v. Garcia, 471

U.S. 261, 280 (1985) (Ҥ 1983 actions best characterized

as personal injury actions and subject to New Mexico

three-year” statute of limitations); aff ’g Garcia v.

App. 81

Wilson, 731 F.2d 640 (10th Cir. 1984); N.M. Stat. Ann.

§ 37-1-8 (1978)); see also Varnell v. Dora Consol. Sch.

Dist., 756 F.3d 1208, 1212 (10th Cir. 2014) (“The law

was settled in Wilson that for § 1983 claims arising in

New Mexico the limitations period is three years, as

provided in New Mexico’s statute of limitations for personal-injury claims”) (citations omitted). The Tenth

Circuit held that the plaintiff ’s claims did not accrue

after the New Mexico Supreme Court’s reversal of the

first convictions, because he “remained subject to those

serious charges and went on trial for his life again in

October 1983 when the malicious prosecution conspiracy again resulted in presentation of the false case

against him.” Robinson, 895 F.2d at 654. The Tenth Circuit instead found that the plaintiff ’s claims accrued

at the conclusion of the second trial, when he was acquitted. Id.

Plaintiff ignores the thread running through all of

these cases—detention. See also Crow, 102 F.3d at

1087 (Heck applies to Bivens actions” as well as “to proceedings that call into question the fact or duration of

parole or probation.”) (citations omitted). The Tenth

Circuit explained in Butler v. Compton, 482 F.3d 1277

(10th Cir. 2007),

[t]he purpose behind Heck is to prevent litigants from using a § 1983 action, with its

more lenient pleading rules, to challenge their

conviction or sentence without complying

with the more stringent exhaustion requirements for habeas actions. See Muhammad

v. Close, 540 U.S. 749, 751–52 (2004) (per

App. 82

curiam). The starting point for the application

of Heck then is the existence of an underlying

conviction or sentence that is tied to the conduct alleged in the § 1983 action. In other

words, a § 1983 action implicates Heck only as

it relates to the conviction that it would be directly invalidating. There is no such conviction here.

482 F.3d at 1279. Similarly, there was no such conviction or detention for Dr. Turner.

Plaintiff advances the novel theory that because

he could have faced a misdemeanor charge if he had

not paid the fine levied by the BOL, his proceedings

should be considered criminal, rather than civil. (Doc.

116, at 12 (discussing N.M. Stat. Ann. § 61-23-27.15E).)

Plaintiff cites no controlling authority in support of

this theory, and the Court is unpersuaded. As Plaintiff ’s claim follows civil proceedings that did not result

in conviction, detention, commitment, or any criminal

proceedings, neither Heck, Cohen, nor Robinson apply.

2. Section 37-1-12 does not toll the applicable statute of limitations.

Plaintiff next argues that N.M. Stat. Ann. § 37-112 tolls the applicable statute of limitations. (Doc. 116,

at 115.) This section provides: “When the commencement of any action shall be stayed or prevented by injunction order or other lawful proceeding, the time

such injunction order or proceeding shall continue in

force shall not be counted in computing the period

of limitation.” N.M. Stat. Ann. § 37-1-12. Plaintiff

App. 83

contends that the statute of limitations should be

tolled from the date he appealed the BOL’s decision to

the date the New Mexico Court of Appeals published

its own opinion. (Doc. 116, at 115.) Plaintiff does not,

however, explain or cite any authority to demonstrate

that the proceedings in the district court or the court

of appeals stayed or prevented him from filing his

claims in this Court. See Butler v. Deutsche Morgan

Grenfell, Inc., 140 P.3d 532, 537 (N.M. Ct. App. 2006)

(Section 37-1-12 “refers only to injunctions or other orders that preclude ‘the commencement’ of an action.”).

Presumably, Plaintiff would argue that Heck’s favorable termination rule prevented him from filing his

claims here before the New Mexico Court of Appeals’

decision. The Court has already found that argument

inapplicable. Consequently, Plaintiff fails to establish

that § 37-1-12 tolled the statute of limitations.

B. The Court declines to address the balance of Plaintiff ’s Motion.

In the third, fourth, and sixth sections of his Motion, Plaintiff contends that the Court erred in finding

that he had failed to plead facts sufficient to state his

claims pursuant to §§ 1983 and 1985. (Doc. 116, at 8–

11, 15–18.) Because the Court reaffirms its decision

that Plaintiff failed to file his claims within the applicable statute of limitations, these issues are moot.

In his seventh argument, it appears Plaintiff advances a new theory of recovery: a claim pursuant to

Bivens, 403 U.S. 388. (Doc. 116, at 18–19.) The Court

App. 84

denies Plaintiff ’s Motion with respect to this last claim

for at least three reasons. First, it is inappropriate to

raise a new argument at this juncture. See Jarita Mesa

Livestock Grazing Ass’n, 58 F. Supp. 3d at 1218; see

also Servants of Paraclete, 204 F.3d at 1012 (“It is not

appropriate to revisit issues already addressed or advance arguments that could have been raised in prior

briefing.”) (citation omitted). Second, a Bivens action is

a “private action for damages against federal officers

alleged to have violated a citizen’s constitutional

rights.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66

(2001) (emphasis added) (holding that a plaintiff may

not bring a Bivens action against private entities acting under color of federal law). Defendants are not federal officers, thus Plaintiff may not bring a Bivens

claim against them. Finally, even if Plaintiff could

bring a Bivens claim against these Defendants, “[a]

Bivens action is subject to the limitation period for an

action under 42 U.S.C. § 1983, and that limitation period is set by the personal injury statute in the state

where the cause of action accrues.” Roberts v. Barreras,

484 F.3d 1236, 1238 (10th Cir. 2007) (citations omitted). The Court has already found that Plaintiff ’s claim

is barred by the applicable statute of limitations, hence

any Bivens claim would also be barred.

IV. Conclusion

The Court has reviewed the facts and the law in a

light most favorable to Plaintiff and finds that Plaintiff

has failed to establish that the Court previously

App. 85

misapprehended the facts, Plaintiff ’s position, or the

controlling law.

THEREFORE,

IT IS ORDERED that Plaintiff ’s Motion to Alter

or Amend Judgment Pursuant to Fed. R. Civ. Pro., Rule

59 (Doc. 116) is DENIED.

/s/ Robert Brack

ROBERT C. BRACK

UNITED STATES

DISTRICT JUDGE

App. 86

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

No. 17-2105

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

WILLIAM M. TURNER,

Plaintiff-Appellant,

v.

MIDDLE RIO GRANDE

CONSERVANCY DISTRICT, et al.,

Defendants-Appellees,

-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

On Appeal from the United States District Court

For the District of New Mexico (Hon. Robert C. Brack)

District Case No. 1:15-00339

APPELLANT’S OPENING BRIEF

-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

A Blair Dunn, Esq.

Dori E. Richards, Esq.

WESTERN AGRICULTURE, RESOURCE

AND BUSINESS ADVOCATES, LLP

400 Gold Ave SW, Suite 1000

Albuquerque, NM 87102

(505) 750-3060

Dated: September 13, 2017

Oral Argument Requested

App. 87

[ii] TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................

iv

STATEMENT OF PRIOR RELATED APPEALS ....

1

JURISDICTIONAL STATEMENT ......................

1

STATEMENT OF THE ISSUES ..........................

1

STATEMENT OF THE CASE..............................

2

STATEMENT OF THE FACTS ...........................

3

SUMMARY OF THE ARGUMENT .....................

7

ARGUMENT ........................................................

7

I.

APPELLANT’S CLAIMS ARE NOT

BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS ............................

7

A. Federal law determines the accrual

date of Appellant’s claims; State law

Governs Tolling....................................

8

B. The Supreme Court’s decision in Heck

v. Humphrey Demonstrates the statute of limitations was tolled Until

April 24, 2013 ...................................... 13

C. State law demonstrates the statute of

limitations was tolled until the New

Mexico Court of Appeals issued its ruling on April 24, 2013 ........................... 16

II.

APPELLANT’S MALICIOUS PROSECUTION CLAIM IS NEIGHER BARRED BY

THE STATUTE OF LIMITATIONS NOR

BASED UPON A FOURTH AMENDMENT SEIZURE ....................................... 20

App. 88

A. Seizure is an element of a Fourth

Amendment malicious prosecution

claim, not a claim under the First

Amendment ......................................... 21

[iii] B. Appellant’s malicious prosecution/

abuse of process claim is recognized

under federal law as “vindictive prosecution” ................................................ 22

C. Appellant’s “vindictive prosecution” is

also supported under the Fifth and

Fourteenth Amendment [sic] ............... 26

III.

APPELLANT’S FIRST AMENDED COMPLAINT MEETS THE REQUISITE

PLEADING STANDARD TO STATE A

§ 1985 CONSPIRACY CLAIM ................... 27

IV.

THE MRGCD IS A PROPERLY NAMED

PARTY ....................................................... 33

CONCLUSION..................................................... 34

ORAL ARGUMENT STATEMENT ..................... 35

CERTIFICATE OF COMPLIANCE ..................... 37

CERTIFICATE OF DIGITAL SUBMISSION ...... 37

CERTIFICATE OF SERVICE ............................. 37

Attachment 1 – Memorandum Opinion and Order ECF Doc 114 ................................... APP 298-306

Attachment 2 – Final Order ECF Doc 115 ..... APP 307

Attachment 3 – Memorandum Opinion and Order ECF Doc 126 ................................... APP 308-317

App. 89

[iv] TABLE OF AUTHORITIES

Cases

Albright v. Oliver, 510 U.S. 266, 271 (1994) ...............27

Anderson Living Trust v. WPX Energy Prod.,

LLC, 27 F.Supp.3d 1188, 1214 (D.N.M. 2014) ........19

Archuleta v. City of Roswell, 898 F.Supp.2d 1240,

1248 (D.N.M. 2012) .................................................28

Becker v. Kroll, 494 F.3d 904, 913-14 (10th Cir.

2007) .................................................................. 25, 26

Beedle v. Wilson, 422 F.3d 1059, 1066 (10th Cir.

2005) ........................................................ 9, 10, 21, 25

Bergman v. United States, 751 F.2d 314, 317

(10th Cir. 1984)........................................................20

Board of Regents v. Tomanio, 446 U.S. 478, 48386, 100 S. Ct. 1790, 1794-96, 64 L. Ed. 2d 440

(1980) .......................................................................12

Bracken v. Yates Petroleum Corp., 1988-NMSC072, 107 N.M. 463....................................................17

Brammer-Hoelter v. Twin Peaks Charter Academy, 492 F.3d 1192, 1212 (10th Cir. 2007)..............34

Brown v. Reardon, 770 F.2d 896, 906 (10th Cir.

1985) ........................................................................28

Brummett v. Camble, 946 F.2d 1178 ..........................12

Carey v. Piphus, 435 U.S. 247, 253 (1978) ..................26

Cohen v. Clemens, 321 Fed.Appx 739, 742 (10th

Cir. 2009) .................................................................14

Colombrito, 764 F.2d 122 ............................................31

App. 90

Colorado River Water Conservation District v.

United States, 424 U.S. 800 (1976) .........................17

DeVaney v. Thriftway Marketing Corp., 1998NMSC-001, ¶ 17, 124 N.M. 512 ..............................25

Eli Lilly & Co. 615 F. Supp. 811 (S.D. Ind. 1985) ......19

Farber v. City of Paterson, 440 F.3d 131, 141 (3rd

Cir. 2006) .................................................................32

Garza v. Burnett, 672 F.3d 1217, 1219 (10th Cir.

2012) ........................................................................10

Gathman-Matotan Architects & Planners, Inc. v.

State Dep’t of Fin. & Admin, 1990-NMSC-013,

¶ 10, 109 N.M. 492 ..................................................17

Gehl Group v. Koby, 63 F.3d 1528, 1534 (10th Cir.

1995) ............................................................ 10, 23, 24

Glasson v. Louisville, 518 F.2d 899, 911-12 (6th

Cir. 1975) .................................................................31

Hartman v. Moore, 547 U.S. at 256 ............................22

Heck v. Humphrey, 512 U.S. 477, 486-87

(1994) ...................................................... 10, 13-16, 20

Helton v. Clements, 832 F.2d 332, 334-35 (5th

Cir. 1987) ........................................................... 12, 13

Holmes v. Finney, 631 F.2d 150, 154 (10th Cir.

1980) ........................................................................29

Hunt v. Bennett, 17 F.3d 1263, 1266 (10th

Cir.1994) ............................................................ 11, 32

Hutfile v. Miccio-Foneseca, 410 F.3d 1136 (9th

Cir. 2005) .................................................................14

J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1291

(10th Cir.1999) ........................................................18

App. 91

[v] Jews for Jesus, Inc. v. Jewish Community Relations Council of New York, Inc., 968 F.2d 286

(2nd Cir. 1992) .........................................................31

Kan. Penn Gaming, LLC v. Collins, 656 F.3d

1210, 1215 (10th Cir. 2011) .....................................28

King v. Lujan, 1982-NMSC-063, ¶ 5, 98 N.M. 179 .......17

KOB-TV, LLC v. City of Albuquerque, 2005NMCA-049, ¶ 20, 137 N.M. 388 ..............................16

Lavellee v. Listi, 611 F.2d 1129, 1131 (5th Cir.

1980) ........................................................................12

Mata v. Anderson, 635 F.3d 1250, 1253 (10th Cir.

2011) ........................................................................19

Mata v. Anderson, 685 F.Supp.2d 1223, 1264

(D.N.M. 2010) ..........................................................22

McCarty v. Gilchrist, 646 F.3d 1281, 1285 (10th

Cir. 2011) ........................................................... 10, 26

McCune v. City of Grand Rapids, 842 F.2d 903,

907 (6th Cir. 1988) ...................................................12

McNeill v. Rice Engineering & Operating, Inc.,

2006-NMCA-015, ¶ 25, 139 N.M. 48 .......................19

Mondragon v. Thompson, 519 F.3d 1078, 1082

(10th Cir. 2008)..........................................................8

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690

n.55 (1978) ...............................................................33

Muhammad v. Close, 540 U.S. 749, 124 S.Ct.

1303 (2004) ..............................................................14

Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir.

2001) ........................................................................27

Otero v. Zouhar, 1985-NMSC-021, 102 N.M. 482 .... 18, 20

App. 92

Parkhurst v. Lampert, 264 F. App’x 748, 749

(10th Cir. 2008)........................................................20

Pembaur v. City of Cincinnati, et al, 475 U.S. 469

(1986) .......................................................................34

Phelps v. Hamilton, 59 F.3d 1058, 1065 n.12

(10th Cir. 1995)........................................................23

Poole v. County of Otero, 271 F.3d 955 (10th Cir.

2001) ........................................................................23

Rakovich v. Wade, 850 F.2d 1180, 1189 (7th Cir.

1988) ........................................................................24

Richardson v. Miller, 446 F.2d 1247, 1249 (3d

Cir.1971) ..................................................................31

Robinson v. Maruffi, 895 F.2d 649 (10th Cir.

1990) .................................................................. 10, 12

Rose v. Bartle, 871 F.2d 331, 348-49 (3d Cir.

1989) ........................................................................12

Rubin v. O’Koren, 621 F.2d 114, 116 (5th Cir.

1980) ........................................................................12

Smith v. City of Enid By and Through Enid City

Com’n, 149 F.3d 1151, 1154 (10th Cir. 1998) ............9

Southworth v. Santa Fe Servs., Inc., 1998NMCA-109, ¶ 14, 125 N.M. 489 ..............................16

Sullivan v. Choquette, 420 F.2d 674 (1st Cir.

1969) ........................................................................13

Taylor v. Gilmartin, 686 F.2d 1346, 1357-58

(10th Cir.1982) ........................................................31

Tiberi v. Cigna Corp., 89 F.3d 1423, 1430-31

(10th Cir. 1996)........................................................11

App. 93

United States Fire Ins. Co. v. Aeronautics, Inc.,

1988-NMSC-051, 107 N.M. 320 .................. 18, 19, 20

United States v. Lampley, 127 F.3d 1231, 1245

(10th Cir. 1997)........................................................23

United States v. P.H.E., Inc., 965 F.2d 848, 853

(10th Cir. 1992)........................................................23

United States v. Wall, 37 F.3d 1443, 1448 (10th

Cir. 1994) .................................................................23

[vi] Venegas v. Wagner, 704 F.2d 1144, 1146 (9th

Cir. 1983) .................................................................13

Wilkins v DeReyes, 528 F.3d 790, 806 fn. 4. (10th

Cir. 2008) .................................................................22

Wilson v. Garcia, 471 U.S. 261, 269 (1985)...................7

Wolford v. Lasater, 78 F.3d 484, 488 (10th Cir.

1996) ...................................................... 10, 23, 24, 25

Younger v. Harris, 401 U.S. 37 (1971) ........................17

Statutes

28 U.S.C. § 1291 ............................................................1

28 U.S.C. § 1343 ............................................................1

42 U.S.C. § 1983 ................................................ 1, 14, 27

42 U.S.C. § 1985 ............................................................1

NMSA 1978, § 31-19-1 ................................................15

NMSA 1978, § 37-1-8 ....................................................7

NMSA 1978, § 37-1-12 .......................................... 18, 20

NMSA 1978, § 61-23-10 ..............................................15

NMSA 1978, § 61-23-23.1 ..................................... 15, 16

App. 94

[1] STATEMENT OF PRIOR RELATED APPEALS

There are no prior related appeals in this matter.

JURISDICTIONAL STATEMENT

The United States District Court for the District

of New Mexico had subject matter jurisdiction to hear

the underlying case pursuant to First, Fifth and Fourteenth Amendments of the United States Constitution,

and 28 U.S.C. § 1343, 42 U.S.C. § 1983 and 42 U.S.C.

§ 1985.

This Court has jurisdiction to hear this appeal

pursuant to 28 U.S.C. § 1291. The District Court for the

District of New Mexico entered a final judgment in this

matter on February 24, 2017 and June 1, 2017, disposing of all claims. Appellants filed a timely Notice of Appeal on June 21, 2017.

STATEMENT OF THE ISSUES

1. THE DISTRICT COURT ERRED IN GRANTING

THE MOTION TO DISMISS FILED BY MRGCD APPELLEES AND MOTION FOR JUDGMENT ON

PLEADINGS FILED BY APPELLEES MS. SMITH,

MR. ROMERO AND MR. YTUARTE.

2. THE DISTRICT COURT ERRED IN DENYING

APPELLANT’S RULE 59 MOTION TO ALTER OR

AMEND JUDGMENT.

3. THE DISTRICT COURT ERRED IN DISMISSING APPELLANT’S CIVIL RIGHTS CLAIMS

App. 95

BROUGHT UNDER 42 U.S.C 1983 AND 42 U.S.C

1985(3) AS BARRED BY THE STATUTE OF LIMITATIONS.

4. THE DISTRICT COURT ERRED IN NOT FINDING THAT APPELLANT’S CLAIM(S) ACCRUED

ONLY ON APRIL 24, 2013.

[2] 5. THE DISTRICT COURT ERRED IN FINDING

THAT APPELLANT FAILED TO STATE CLAIMS

UNDER 42 U.S.C 1983 AND 42 U.S.C 1985(3).

6. THE DISTRICT COURT ERRED IN FINDING

THAT APPELLANT’S NEW MEXICO TORT CLAIMS

ARE BARRED BY STATUTE OF LIMITATIONS.

7. THE DISTRICT COURT ERRED IN FINDING

THAT THE RULE IN HECK V. HUMPHREY, 512 U.S.

477 IS NOT APPLICABLE TO PLAINITFF’S CASE.

8. THE DISTRICT COURT ERRED IN FINDING

THAT APPELLANT FAILED TO SUFFICIENTLY

PLEAD FACTS ABOUT THE POLICY OR CUSTOM

OF MRGCD IN SUPPORT OF HIS CIVIL RIGHTS

CLAIM(S).

STATEMENT OF THE CASE

This matter arises from Appellees’ 42 U.S.C. 1983

violations of Appellant’s constitutional rights, discrimination, denial of equal protection and 42 U.S.C. 1985

conspiracy to interfere with Appellant’s civil rights.

Appellant also brings common law torts of malicious

abuse of process and conspiracy, as well as slander and

App. 96

defamation and seeks damages for all alleged violations. The Appellees Middle Rio Grande Conservancy

District, Subhas Shan and Dennis Domrzalski

(“MRGCD Appellees”) move to dismiss Appellant’s

First Amended Complaint on the basis that: 1) no

claims are made against the Appellee MRGCD; 2) all

of Appellants claims are barred by the statute of limitations; 3) Appellant has failed to state a §1985 conspiracy claim; and 4) there is no waiver of immunity

under the New [3] Mexico Tort Claims Act for Appellant’s state law claims as against the MRCGD Appellees.

Appellant’s Complaint meets the applicable pleading standard and Appellant’s claims are not barred by

the statute of limitations. Appellant acknowledges the

State law claims as made against the MRGCD Appellees in their official capacity are barred by the NM Tort

Claims Act.

STATEMENT OF THE FACTS

On April 24, 2007, Appellee Domrzalski filed a

complaint with the BOL against Appellant for “practicing engineering without a license.” (Aplt. App. 020).

Appellee Domrzalski testified during deposition that

the Complaint was dictated to him by the MRGCD Executive Director, Appellee Shah. (Aplt. App. 020) At the

time, Appellee Shah was also the Chairman of the

BOL. (Aplt. App. 020) When Appellees Domrzalski and

Shah initiated the BOL Complaint against Appellant,

Appellees knew that Appellant was immune from such

App. 97

suit as a Board member of MRGCD. Appellees’ sole intention in filing such suit was to harass, quash and

oust Appellant from the MRGCD Board. (Aplt. App.

021) Under the Chairmanship of Appellee Shah, BOL

found Appellant guilty of “practicing engineering without a license.” Appellant appealed the BOL administrative decision to the Second Judicial District Court

in Albuquerque. (Aplt. App 021).

[4] The Second Judicial District Court reversed

the BOL, finding that the decision was unwarranted

and violated Appellants First Amendment Rights.

(Aplt. App. 021). The Attorney General for the State of

New Mexico, through Mary Smith, appealed the Second Judicial District Court decision to the New Mexico

Court of Appeals. (Aplt. App. 021) On April 15, 2013,

the Court of Appeals upheld the Second Judicial District Court finding that Appellees’ actions violated Appellant’s Constitutional Right to free speech. (Aplt/

App. 021).

As Appellees state, the Court may take judicial notice of facts which are a matter of public record. The

decision of the NM Court of Appeals in NM Board of

Licensure v. William Turner, 2013-NMCA-067 was filed

on April 24, 2013, not April 15, 2013 as alleged at paragraph 54 of Appellant’s First Amended Complaint.

(Aplt. App. 320-329. The New Mexico Court of Appeals

found that:

1. Turner prepared and presented a report at the

February 27, 2007 MRGCD Board of Directors meeting

App. 98

which expressed his concerns regarding the condition

of MRGCD ditches. (Aplt. App. 321)

2. Turner reiterated that he was not an engineer

multiple times during the MRGCD Board of Directors

meeting, when giving and in response to comments

about his presentation. In addition, Turner insisted

that MRGCD should hire a registered engineer to deal

with the issues highlighted in his report. At the end of

Turner’s report, he stated that he was not a registered

professional engineer and that [5] his report should be

reviewed by a registered professional engineer. (Aplt.

App. 321)

3. Dennis Domrzalski, a contract employee of

MRGCD, thereafter filed a complaint against Turner

with the Board, alleging that Turner engaged in the

forbidden practice of engineering without a license

when he wrote and presented his report at the

MRGCD Board of Directors meeting. In a letter responding to the complaint, Turner asserted that he

“was never paid for the services, nor were the services

ever considered anything more than an opinion by a

board member for a reason to obtain a licensed professional engineer’s services.” (Aplt App. 322)

4. Nonetheless, the Board’s professional engineering committee conducted an administrative hearing on December 16, 2009, nearly three years after

Turner’s February 2007 presentation to the MRGCD

Board of Directors. (Aplt. App. 322)

5. On February 26, 2010, the Board issued its Decision and Order containing its findings of fact and

App. 99

conclusions of law. The Board concluded that Turner

had in fact practiced engineering without a license, in

violation of the ESPA, NMSA 1978, Sections 61-23-2

(2003) and -3 (2005), “by his investigation and evaluation of the planning and design of ‘engineering works

and systems’ – MRGCD ditches – described in his . . .

[r]eport . . . and his presentation of that [r]eport to the

MRGCD Board of Directors.” Id.

[6] 6. The Board ordered Turner to cease and desist from any further unlicensed practice of engineering, pay a $2,500 civil penalty, and pay an additional

administrative hearing cost in the amount of

$2,670.93. (Aplt. App. 322).

7. Turner timely appealed the Board’s decision

to the district court. In its appellate capacity, the district court determined that the Board’s decision was

not supported by substantial evidence. The district

court concluded that “Turner’s conduct in evaluating

an engineering issue, performing engineering calculations, writing his conclusions, and presenting them

publicly, cannot constitute the practice of engineering

without a license.” The district court explained that

the Board’s actions violated Turner’s First Amendment right to freedom of speech. (Aplt. App. 322-323)

8. The New Mexico Board of Licensure for Professional Engineers and Professional Surveyors (the

Board) appealed the district court’s reversal of the

Board’s decision finding that William Turner practiced

engineering without a license in violation of the Engineering and Surveying Practice Act (ESPA). The Board

App. 100

argued that the district court erred by (1) determining

that the Board’s interpretation of the ESPA improperly infringed on Turner’s free speech rights; (2) reweighing the evidence in the administrative record

and substituting its judgment for that of the Board;

and (3) making its own findings of fact. (Aplt. App. 320321).

[7] 9. The District Court did not engage in fact

finding, re-evaluating evidence, or improper appellate

review. The District Court’s reversal was based upon

the Board’s failure to adhere to the constitution in applying Section 61-23-2. (Aplt. App. 328).

SUMMARY OF THE ARGUMENT

The District Court erred in failing to address or

consider, Appellant’s arguments regarding the the [sic]

proper statute of limitation or the concerns of 1st

Amendment violation through vindictive prosecution.

ARGUMENT

I.

APPELLANT’S CLAIMS ARE NOT BARRED

BY THE APPLICABLE STATUTE OF LIMITATIONS.

In this case, the Parties agree that New Mexico’s

three-year personal injury statute of limitations,

N.M.S.A. 1978, § 37-1-8, applies to Appellant’s § 1983

claims. “The applicable statute of limitations for a

§ 1983 claim is drawn from the personal-injury statute

App. 101

of the state in which the federal district court sits.”

Wilson v. Garcia, 471 U.S. 261, 269 (1985). Where the

Parties disagree is over the date of accrual. Appellees

assert that Appellant’s federal civil rights allegations

encompass violations of his due process rights, first

amendment rights, and equal protection rights for actions that occurred in 2007 through 2010. (Aplt. App.

048).

[8] Appellees claim the statute of limitations on

Appellant’s § 1983 claims “began to accrue on the dates

the events are alleged to have occurred.” Id. Appellees

argue that all facts concerning Appellant’s claims

against the MRGCD’s Appellees occurred from 2007 to

at the latest March 2010, and therefore Appellant’s

§ 1983 actions are subject to dismissal as beyond the

statute of limitations. (Aplt. App. 049). The statute of

limitations began to run from the date the Court of Appeals issued its ruling in the matter of New Mexico

Board of Licensure for Professional Engineers and

Professional Surveyors v. William Turner, 2013NMCA-067, which was on April 24, 2013.(Aplt. App.

320-329).Appellant’s case was filed in the District

Court on April 23, 2015, within the three-year statute

of limitations.

A. Federal Law Determines the Accrual

Date of Appellant’s Claims While State

Law Governs Tolling.

“Federal law determines the date on which the

claim accrues and the limitations period starts to run.

App. 102

State law governs any tolling of that period, except

that federal law might also allow additional equitable

tolling in rare circumstances.” Mondragon v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008) (internal citations omitted). “A civil rights action accrues when

the Appellant knows or has reason to know of the injury which is the basis of the action. Since the injury

in a § 1983 case is the violation of a constitutional

right, such claims accrue when the Appellant knows or

should know that his or her constitutional rights have

been violated. This [9] requires the court to identify the

constitutional violation and locate it in time.” Smith v.

City of Enid By and Through Enid City Com’n, 149

F.3d 1151, 1154 (10th Cir. 1998).

In this case, Appellant has brought claims against

the MRGCD Appellees for: 1) Due Process under the

Fifth Amendment (First Cause of Action); 2) First

Amendment (Second Cause of Action); 3) Equal Protection and Discrimination (Third Cause of Action); 4)

Conspiracy (Fourth & Firth [sic] Causes of Action); 5)

Malicious Prosecution & Abuse of Process (Sixth Cause

of Action); 6) State Common Law and Tort Act Claims

(Seventh Cause of Action). It is important to note that

Appellant’s claims are fundamentally premised upon a

civil – not a criminal – prosecution, stemming from the

initiation of an administrative action against Appellant with the NM Board of Licensure on April 24, 2007.

However, failing to pay the civil penalty assessed

against him statutorily became a criminal charge. Under NMSA 1978, §61-23-27.11(C), the “[f ]ailure to pay

a fine levied by the board or to otherwise comply with

App. 103

an order issued by the board pursuant to the Uniform

Licensing Act [Chapter 61, Article 1 NMSA 1978] is a

misdemeanor and shall be grounds for further action

against the licensee by the board and for judicial sanctions or relief.”

It is unequivocal that “[g]overnment action which

chills constitutionally protected speech or expression

contravenes the First Amendment.” Beedle v. [10] Wilson, 422 F.3d 1059, 1066 (10th Cir. 2005), citing to Wolford v. Lasater, 78 F.3d 484, 488 (10th Cir. 1996) and

Gehl Group v. Koby, 63 F.3d 1528, 1534 (10th Cir. 1995).

“When the § 1983 claim is based on an allegedly unconstitutional conviction or other harm that, if determined to be unlawful, would render a conviction or

sentence invalid, accrual is delayed until the conviction or sentence has been invalidated.” McCarty v.

Gilchrist, 646 F.3d 1281, 1289 (10th Cir. 2011) citing to

Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). “Actions under § 1983 normally accrue on the date of the

constitutional violation. However, under Heck, a § 1983

claim is not cognizable if it “necessarily require[s] the

plaintiff to prove the unlawfulness of his conviction or

confinement.” 512 U.S. at 486. Accordingly, an Appellant advancing a claim subject to the Heck bar is required to show that [the] conviction was reversed or

otherwise set aside, id. at 487, and the claim does not

accrue until the date the conviction is declared invalid,

id. at 489-90; see also Wallace, 549 U.S. at 393 (Heck’s

principle of deferred accrual “delays what would otherwise be the accrual date of a tort action until the setting aside of an extant conviction which success in that

App. 104

tort action would impugn.)” Garza v. Burnett, 672 F.3d

1217, 1219 (10th Cir. 2012).

Appellant has brought conspiracy claims in this

case; which are in part based upon the continued malicious prosecution by Appellees. In Robinson v.

Maruffi, 895 F.2d 649 (10th Cir. 1990), the Tenth Circuit addressed the accrual date of this [11] same type

of conspiracy claim. Robinson involved § 1983 and

§ 1985 claims against Albuquerque Police Officers. One

issue on appeal was the statute of limitations. The

Tenth Circuit held that “the civil rights case of Robinson based on conspiracy for malicious prosecution was

not time barred when it was commenced on August 17,

1984 – well within the three-year limitation period following the October 1983 second trial where the false

case against Robinson was again presented and Robinson was finally acquitted.” 895 F.2d at 655. See also

Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994)

(“An allegation of a conspiracy constitutes a viable

claim under Sec. 1983, even if the alleged conspiracy

began at a point that would be barred by the statute of

limitations.”

“Under the continuing wrong doctrine where a tort

involves a continuing or repeated injury, the cause of

action accrues at, and limitations begin to run from,

the date of the last injury. In other words, the statute

of limitations does not begin to run until the wrong is

over and done with.” Tiberi v. Cigna Corp., 89 F.3d

1423, 1430-31 (10th Cir. 1996). “New Mexico courts

have consistently considered the applicability of the

continuing wrong doctrine in a variety of cases. . . .

App. 105

Thus, although it has not been applied in every possible case, we believe that New Mexico recognizes the

doctrine.” Id. at 4.

The real question in this case is what would be the

outcome of a 1983 claim if the appellate court had

found that Plaintiff has actually practiced ‘engineering’ in [12] violation of the professional code. In Brummett v. Camble, 946 F.2d 1178, the Fifth Circuit has

held that “The question remains whether a § 1983

plaintiff should be required to file suit prior to such

termination. Although state law supplies the limitations period for § 1983 claims, federal law determines

when the cause of action accrues. Board of Regents v.

Tomanio, 446 U.S. 478, 483-86, 100 S. Ct. 1790, 179496, 64 L. Ed. 2d 440 (1980); Helton v. Clements, 832

F.2d 332, 334-35 (5th Cir. 1987). In this circuit, a § 1983

claim accrues when the plaintiff “becomes aware that

he has suffered an injury or has sufficient information

to know that he has been injured.” Helton, 832 F.2d at

332 (citing Rubin v. O’Koren, 621 F.2d 114, 116 (5th Cir.

1980), on reh’g, 644 F.2d 1023 (5th Cir. 1981), and

Lavellee v. Listi, 611 F.2d 1129, 1131 (5th Cir. 1980)).

Relying on this standard, defendants insist that

although a state law malicious prosecution claim does

not accrue until the underlying criminal proceeding is

terminated in the plaintiff ’s favor, a § 1983 malicious

prosecution claim accrues when the plaintiff is indicted.

The perverse result of such a rule is that claimants

would have to file § 1983 suits before they even know

they have a cause of action, i.e., before a prosecution

App. 106

has ended favorably to them. Why defendants would

advocate the filing of premature lawsuits defies our understanding as well as the uniform precedent of other

circuit courts. See, e.g., Robinson v. Moruffi, 895 F.2d

649, 654-55 (10th Cir. 1990); Rose v. Bartle, 871 F.2d

331, 348-49 (3d Cir. 1989); McCune v. City of Grand

Rapids, 842 F.2d 903, 907 (6th Cir. 1988); Venegas v.

Wagner, 704 F.2d [13] 1144, 1146 (9th Cir. 1983); Singleton v. City of New York, 632 F.2d 185, 194-95 (2d Cir.

1980), cert. denied, 450 U.S. 920, 101 S. Ct. 1368, 67

L. Ed. 2d 347 (1981); Morrison v. Jones, 551 F.2d 939,

940-41 (4th Cir. 1977); Sullivan v. Choquette, 420 F.2d

674 (1st Cir. 1969), cert. denied, 398 U.S. 904, 90 S. Ct.

1691, 26 L. Ed. 2d 62 (1970). See also Wheeler, 734 F.2d

at 254. The cases cited by the defendants and the district court in support of a contrary holding involve

§ 1983 claims other than those for malicious prosecution. See, e.g., Helton, 832 F.2d at 332; Rubin, 621 F.2d

at 116; Lavellee, 611 F.2d at 1131.

B. The Supreme Court’s Decision in Heck

V. Humphrey Demonstrates the Statute

of Limitations Was Tolled Until April

24, 2013.

In Heck v. Humphrey, 512 U.S. 477, 486-87 (1994),

the Supreme Court addressed the question of when a

prisoner may bring a § 1983 claim relating to his or her

conviction or sentence. The Court held that when a

state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor

of the Appellant would necessarily imply the invalidity

App. 107

of his conviction or sentence; if it would, the complaint

must be dismissed unless the Appellant can demonstrate that the conviction or sentence has already been

invalidated. But if the district court determines that

the Appellant’s action, even if successful, will not

demonstrate the invalidity of any outstanding criminal judgment against the Appellant, the action should

be allowed to proceed, in the absence of some other [14]

bar to the suit. 512 U.S. at 487 (footnotes omitted).

Thus, for § 1983 claims necessarily challenging the validity of a conviction or sentence, Heck delays the rise

of the cause of action until the conviction or sentence

has been invalidated. Because the cause of action does

not accrue until such time, the applicable statute of

limitations does not begin to run until the same time.

See Heck, 512 U.S. at 489-90. This is also consistent

with Tenth Circuit precedent. Heck dealt with the “intersection of the two most fertile sources of federalcourt prisoner litigation” – the basic federal civil rights

statute, 42 U.S.C. § 1983, and the federal habeas corpus statute for state prisoners, 28 U.S.C. § 2254. 512

U.S. at 480, 114 S.Ct. 2364. In Muhammad v. Close, 540

U.S. 749, 124 S.Ct. 1303 (2004), the Supreme Court explained that Heck’s favorable termination rule “served

the practical objective of preserving limitations on the

availability of habeas remedies. Federal petitions for

habeas corpus may be granted only after other avenues

of relief have been exhausted. Prisoners suing under

§ 1983, in contrast, generally face a substantially lower

gate . . . ” Id. at 751, 124 S.Ct. 1303 (citations omitted).

The Tenth Circuit has held that “the rule in Heck is not

limited to claims challenging the validity of criminal

App. 108

convictions.” Cohen v. Clemens, 321 Fed.Appx 739, 742

(10th Cir. 2009). The Heck favorable termination rule

was found applicable to civil commitments under California’s Sexually Violent Predators Act in Hutfile v.

Miccio-Foneseca, 410 F.3d 1136 (9th Cir. 2005).

[15] In this case, Mr. Turner was not “criminally”

convicted. Rather, a statutorily imposed civil “sentence” was imposed against him, which bears sufficient

similarity to apply the Supreme Court’s reasoning in

Heck to the facts of this case. As the New Mexico Court

of Appeals recognized, the Board of Licensure ordered

Turner to “cease and desist from any further unlicensed practice of engineering, pay a $2,500 civil penalty, and pay an additional administrative hearing cost

in the amount of $2,670.93.” Board v. Turner, (Aplt.

App. 322). The Board of Licensure is the sole state

agency with the power to certify the qualifications of

professional engineers and professional surveyors, and

to administer the provisions of the Engineering and

Surveying Practice Act. NMSA 1978, § 61-23-10. The

Board is empowered to investigate and initiate a hearing on a complaint against a person who does not have

a license, hold hearings, and after hearing can impose

a civil penalty and issue “any other sanction, action or

remedy.” NMSA 1978, § 61-23-23.1(A) & (B). “Failure

to pay a fine levied by the board or to otherwise comply

with an order issued by the board pursuant to the Engineering and Surveying Practice Act is a misdemeanor, and upon conviction the person shall be

sentenced pursuant to Section 31-19-1 NMSA 1978.

Conviction shall be grounds for further action against

App. 109

the person by the board and for judicial sanctions or

relief, including a petition for injunction.” NMSA 1978,

61-23-23.1(C). The statutory scheme under which the

Board operates demonstrates the action taken against

Mr. Turner was [16] “quasi- judicial” in nature. “An administrative agency acts in its quasi-judicial role when

it investigates or ascertains the existence of facts,

holds hearings, and draws conclusions from them.”

Southworth v. Santa Fe Servs., Inc., 1998-NMCA-109,

¶ 14, 125 N.M. 489. “Quasi-judicial action has been defined as involving a determination of the rights, duties,

or obligations of specific individuals on the basis of the

application of presently existing legal standards or policy considerations to past or present facts developed at

a hearing conducted for the purpose of resolving the

particular interests in question.” KOB-TV, LLC v. City

of Albuquerque, 2005-NMCA-049, ¶ 20, 137 N.M. 388.

Both an injunction and penalty were levied by the

Board of Licensure against Mr. Turner, who timely appealed the Board’s decision to the district court, as permitted under NMSA 1978, § 61-23-23.1(D). After the

district court found the Board’s actions to be unconstitutional, the Board appealed to the New Mexico Court

of Appeals. The Board’s “conviction and sentence”

against Mr. Turner was ultimately invalidated on April

24, 2013. Under the Supreme Court’s reasoning in

Heck, it is from this date the statute of limitations

should run.

App. 110

C. State Law Demonstrates the Statute of

Limitations Was Tolled Until The New

Mexico Court of Appeals Issued Its Ruling on April 24, 2013.

Here, the initial basis of Appellant’s claims as alleged in his First Amended Complaint was the filing of

the April 24, 2007 complaint against Appellant with

[17] the NM Board of Licensure by MRGCD employee

Dennis Domrzalski, acting under the express direction

of MRGCD Board member Subash Shah. The Board of

Licensure’s professional engineering committee,

chaired by Appellee Shah, did not conduct an administrative hearing until December 16, 2009.

While the administrative complaint was pending

for more than two years before the Board of Licensure,

the statute of limitations was tolled. “Filing of the complaint is commencement of the action which generally

tolls the applicable statute of limitations.” King v.

Lujan, 1982-NMSC-063, ¶ 5, 98 N.M. 179. See also

Gathman-Matotan Architects & Planners, Inc. v. State

Dep’t of Fin. & Admin, 1990-NMSC-013, ¶ 10, 109 N.M.

492 (“The Court in Bracken v. Yates Petroleum Corp.,

1988-NMSC-072, 107 N.M. 463 clearly applied the

principle that the filing of an action later dismissed

without prejudice for reasons such as improper venue

or a federal court’s discretionary refusal to entertain

pendent jurisdiction tolls the statute of limitations applicable to the claim.”). Here, Appellant’s § 1983

claims, if brought during pendency of the State administrative action, would have been subject to dismissal

under federal abstention principles, such as Younger v.

App. 111

Harris, 401 U.S. 37 (1971) and Colorado River Water

Conservation District v. United States, 424 U.S. 800

(1976). Younger abstention principles have been expanded to include civil proceedings in which important

state interests are involved and to administrative proceedings that are judicial in nature and involve important state [18] interests. See J.B. ex rel. Hart v.

Valdez, 186 F.3d 1280, 1291 (10th Cir.1999).

“Under NMSA 1978, § 37-1-12, “When the commencement of any action shall be stayed or prevented

by injunction order or other lawful proceeding, the

time such injunction order or proceeding shall continue in force shall not be counted in computing the

period of limitation.” This statutory section was cited

by the New Mexico Supreme Court in United States

Fire Ins Co. v. Aeronautics, Inc., 1988-NMSC-051, ¶ 5,

107 N.M. 320, in holding that “the statute [of limitations] does not run during the pendency of an appeal.”

See also Otero v. Zouhar, 1985-NMSC-021, ¶ 14, 102

N.M. 482 (“The submission of plaintiff ’s application to

the commission before the statute expired would then

have tolled the limitation period until after the commission had rendered its decision.”). Similarly, while

the administrative action was pending for nearly three

years before the Board of Licensure, the statute of limitations was tolled until the Board issued its Decision

against Mr. Turner on February 26, 2010, when the

Board concluded that Mr. Turner had practiced engineering without a license.

As the New Mexico Court of Appeals recognized,

Turner timely appealed the Board of Licensure’s

App. 112

decision to the district court, which acted in an appellate capacity. After the district court ruled in Turner’s

favor on January 3, 2011, the Board of Licensure appealed the district court’s reversal of the Board’s decision to the New Mexico Court of Appeals. Under New

Mexico law, during the entire [19] appeal process – before both the district court and the Court of Appeals –

the statute of limitations was tolled because “the statute [of limitations] does not run during the pendency

of an appeal.” United States Fire Ins. Co., 1988-NMSC051 at ¶ 5. The statute of limitations was tolled during

the two appeals, and the facts also demonstrate the

continuing wrong doctrine applies in determining the

date of accrual of Appellant’s § 1983 claims. The New

Mexico Court of Appeals in McNeill v. Rice Engineering

& Operating, Inc., 2006-NMCA-015, ¶ 25, 139 N.M. 48

held that “Eli Lilly & Co. [615 F. Supp. 811 (S.D. Ind.

1985)] stated that “[t]he continuing wrongful conduct

of the Appellee toward the claimant which establishes

a status quo of continuing injury may give rise to a continuing cause of action. Where the wrong is continuing,

the statute of limitations does not begin to run until

the wrong is over and done with.” The Honorable

Judge Browning recognized the application of this

principle of New Mexico law in Anderson Living Trust

v. WPX Energy Prod., LLC, 27 F.Supp.3d 1188, 1214

(D.N.M. 2014), in which he stated: “[u]nder the continuing wrong doctrine where a tort involves a continuing

or repeated injury, the cause of action accrues at, and

the limitations begin to run from, the date of the last

injury. In other words, the statute of limitations does

not begin to run until the wrong is over and done with.”

App. 113

The Tenth Circuit addressed this doctrine in Mata v.

Anderson, 635 F.3d 1250, 1253 (10th Cir. 2011), in

which it recognized “the doctrine is triggered ‘by continual unlawful [20] acts, not by continual ill effects

from the original violation,’ ” citing to Parkhurst v.

Lampert, 264 F. App’x 748, 749 (10th Cir. 2008) (unpublished) (quoting Bergman v. United States, 751 F.2d

314, 317 (10th Cir. 1984)).

Here, the wrongful conduct of Appellees alleged in

Appellant’s First Amended Complaint continued beyond the initial filing of the administrative complaint

in 2007 through the appeals to the district court and

the New Mexico Court of Appeals. The wrong was not

“over and done with” until the Court of Appeals issued

its April 24, 2013 Decision. The statute of limitations

runs from that date, and Appellant’s April 23, 2015

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